UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


— ooOoo— 
Allri^n  V.  fivie.  24 

Alexander  v.  Newcastle     70 
Alexander  v.  ^outhey 
Allsop  V.  Allsop 
Anonyrrjcus  (11  Hen.  IV. ) 
Anonyon,us  (  5ed.  IV.) 
Anonymous  {9?A.   IV.  ) 
Anonymous  (5  Hen.  VII. ) 
Anony[iio4s  (Keilway  ) 
Anthony  v.  Hany 


' ases. 


54 
148 
171 

29 
22 
37 

25 


Brown  v.  Kendall  15 

Brown  v.  Perkins  34 

Bruch  V.  Carter  13 

Bullock  v./  Babcock  15 

Burling  v^  Reed  29 

f 

Burrcugh:^  v.  Houston ic  H.Gc.  125 

Bushel  v;.  'ailer  43 

Butterfleld  v.  Forrester  B7 

Buxendin  v.  Sharp  131 

Byne  V;!  Moore  155 


BatGhsldre  v., Heagsn 
Bailiffs  of  Rotnnriiny  Varch 
V.  Trinity  Rouse 
Baldwin  v.  3cle 
Barns  v,  Campbell 
Barns  v.  Ward 
Barrows  v.  Bell 
Basly  V.  Clarkson 
Bassett  v,  Vaynard 
Beach  v.  Hancock 
Bedford  v.  Bagsha-.v 
Bell  V.  Hansley 
Bellfontaine  ?■  I.  R.  Co. 

Snyder 
Bennett  v.  Deacon 
Bernina  The 
Binford  v.  Johnston 
Bird  V.  Johns 
Bishop  V,  St.  Paul  Co. 
Blackham  v.  Pugh 
Blades  v.  Higgs 
Elaisdell  v.  Stone 
Blcodbalm  Co.  v.  Cooper 
Blyth  V.  BirminghaiT:  rl .   Co 
Eobb  V.  Bosworth 
Boswortji  V.  Swasy 
Bcwen  v.  Hall 
Box  V.  Jubb 
Brill  V.  Flagler 
Bromage  v.  Possor 
Brown  v.  Collins 
Brown  v. Giles 
Brown  v.  Hummel 1 


124 

59 
54 

108 

154 

15 

42 
o 

143 
20 

101 

1  -s^ 

99 
71 
10 

00 

25 
129 
104 

PO 

26 
81 
170 
123 
34 
149 
123 
127 

111 


Cabot  V.  Chrystie 
Cairpbell  v.  Boyd 
Campbell  v.  Race 
Campbell  v.  Sherman 
Carpenter  v.  Bailey 
Carpenter  v.  Manhattan  Co. 
Carrington  v.  L.&  N.R.Co. 
Carter  v.  Towne 
Carterville  v.  Cook 
Chase  v.  Ingalls 
Chesley  v.  King 
Child  V.  Affleck 
Cincinnati  ^c.R.Cc.v.-niitb 
Clark  V.  Kelliher 
Clark  V.  Vclyneux 
Cleveland  R.M.Co.v.Corrigan 
Cloon  V.  3erry 
Clutterbuck  v.  Chaffers 
Cole  V.  Fisher 
Cole  V.  Turner 
Collins  V.  Renison 
Com' 1th  V.  Clark 

V.  Crotty 

V.  Kennard 
Consolidated  Co.  v.  Cunis 
Cottrill  V.  Krum 
Coward  v.  Baddeley 
Cox  V.  Bur bridge 
Coxhead  v,  Richards 
Curt in  y.  Somerset 


13S 

115 

33 

38 

151 


111 

71 

74 

37 

173 

157 

111 

>"4 

151 

94 

164 

144 

13 


39 

39 

51 

143 


133 
157 
105 


2. 


4 


1. r.vi.-c  V.  oardiner 

li7 

Gannon  v.  'Vilson 

79 

Davies  v.  Mann 

88 

Gautret  v.  Fdgerton 

115 

Davids  V.  SoloiTion 
Davis*.  V,  Campbell 

148 

25 

Gennor  v.  Sparkes 
George  v.  Skivington 

8 
103 

Davis  y.  Central  5c.  Soc. 
Dean  v.^McCarty 

Decksr  v'.  Ganirron 

117 

Gibbons  v.  Pepper 

5 

124 

132 

Gilbert  v.  ?tone 
Gilnian  v.  Noyes 

35 

32 

145 

Classey  v.  HestcnviJle''-'.Co. 

101 

Delacroix  v.  Thevenot 

Denny  v.  ■I.Y.C.R.R.Co. 

51 

Glever  v.  Hynds 

35 

Derry  v.  Peek 

137 

Grainger  v.  Hill 

138 

Dewey  v.  'Vhite 

31 

Green  v.  Dunn 

54 

Dickinson  v.  JA'atscn 

14 

Green  v.  Goddard 

22 

Dole  V.  Frskine 

21 

H. 

Donovan  v.  H.i.St.J.R.Co. 

97 

Haddrick  v.  Heslcp 

135 

Doherty  v.  Stepp 

12 

Hairilton  v.  Lomax 

18 

Doyle  V.  Vance 

132 

Harrison  v.  Berkley 

39 

Duncoflibe  v.  Daniel 

158 

I^arrison  v.  Bush 

153 

ir_ 

Hart.  V.  Aldridge 

138 

tdeineton  v.  ^itzn-aurice 

135 

Harvey  v.  Waine 

29 

iihrgott  v;  Vayor  of  N.Y. 

57 

Hatch  V.  Lane 

159 

'^'llis  V.  Loftus  Co. 

12 

Haycraft  v.  Creasy 

139 

'^insland  v.  Cowley 

53 

Heaven  v.  Pender 

103 

ten  V.  Luyster 

57 

Hegarty  v.  ^hine 

17 

Heeg  V.  Licht 

125 

F. 

Higginson  v.  York 

IS 

Fallon  V.  O'Brien 

133 

Hill  V.  'Unsor 

36 

Parrar  v.  'lollins 

42 

Hiort  V.  BoLt 

53 

Pent  V.  Toledo  ^-c.  R.  Co. 

83 

Loag  v.  Lake  Shore  R.  Co. 

34 

B'illburn  v.  Peoples  P.fA. 

C130 

Hogle  V.  N.Y.C.R.Oo. 

74 

Fitzgerald  v.  Cavin 

18 

Hcllins  V.  Fowler 

50 

FletTiininfi  v.  Orr 

131 

Holn;es  v.  Mat.her 

n 

0 

Fletcher  v.  Fletcher 

31 

For ton  v.  Benders  hot t 

38 

Fletcher  v.  hy lands 

119 

Hounsell  v.  S.Tyth 

114 

Forsdick  v.  Collins 

43 

Hoyt  V.  Jeffers 

63 

Foshay  v.  f'ersuson 

134 

Hunnewell  v.  Duxbury 

143 

'»'css  v.  Hildreth 

149 

Foster  v.  Charles 

140 

1. 

Fotherineham  v.  AdanisCo. 

10 

Illidge  V.  Goodwin 

72 

Fouldes  V.  Valloughby 

43 

Indeniauer  v.  Dan.es 

lis 

Frome  v.  "'ennis 

^5 

Innes  v.  v'^ylie 

y 

Frost  v.  '^astern  R.R. 

112 

Ireland  v.  FUiott 

35 

G. 
"alena  5c. R. Co. v, Jacobs 

92 

J. 
Jackson  v.  Hoppertcn 

150 

Gallagher  v.  Humphrey 

115 

James  v.  Campbell 

14 

Salliard  v.  Laxton 

40 

James  v.  Bayward 

33 

Galvin  v.  Bacon 

44 

Jencure  v.  Celmegs 

151 

Joann&'S  v.  benn^tl 
Johnson  v.  Farr 
Jones  V.  Boyce 
Jones  V.  'illianis 

Keck  V.  Halsteaci 
Ksffe  V.  ■  .  t.P.K.Jo. 
''ellofig  V.  ,.:nicagoSN.W.R 
•<eyworth  v.'>  Hill 
•■■, idney  v.  Stoddard 
'•  irby  V.  Roster- 
Kirk  V.  3rep;ory 
Klcus  V.  Henn^sey 
Krum  V.  .Anthony 


15^ 
61 


^1 

iia 

97 
44 


lSS 
26 


171 


McConald  v.  Snelling 
VcGrath  v.  Merwin 
S^cPherson  v.  Daniels 
Meredith  v.  Reed/ 
Vilwaukee  R.Co.^.Ksllcgg 
Milissich  v.  Ldoyds 
Miller  v.  Bakj^r 
■/illsr  V,  Civil 
Vitchell  V. /Jenkins 
Mogul  Co.  V.  McGregor 
Morris  v.  /^lugent 
Mortin  v.jShoppee 
Mouse's  Cfese 
Mulgrave  v.  O^den 
Murphy  v.  Oeane 


80 
149 

p« 

34 

154 
13 
148 
185 
171 
21 


41 

90 


Lane  v.  Atl.  ^'orks 

Langridgs.v.  Levy 

Lashus  V.  Matthews 

fatter  V.  Braddell 

Lawless  v.  Anglo-F:gyp.:;;o 

Leonard  v.  Ailkins 

Livernicre  v.  Batchelder 

Loker  v.  Canon 

Long  V.   ''toodnian 

Lords  Bailiff  v.  Trinity 

House 

Lorinc  v.  f^ulcahy 

Louisville  N.R.'o.v.Hurt 

Low  v.   Uwell 

Lu.T.ley  V.  3ys 

Lynch  v.  Knight 

Lyons  v.  Cesotelle 

M 

Mahurin  v.  Harding 
V arent.il is  v.  Oliver 
Varks  v.  !?aker 
f/arlow  v.  V.'ssks 
i/ars  V.  Delaware  Zo. 
Marshall  v.  Aelwoca 
L'arvin  v.  3hg.R.Cc. 
Mason  v.  Keeling 
Mathews  v.  L.S.J.'.Go. 
'/8X  Morris,  T'he 
May  v.  Burdett 
Waynard  v.  B.&M.R.R. 
McOcnibie  v.  rjavies 


7? 

m 

17 
.156 
23 
24 
75 


59 

45 
109 

28 
16P 

71 

-1 


1S7 


Nashua  Co. v. The 


91 


12 
7- 

12S 
65 

131 

180 
110 


Meal  v.  ailleU 

c  c 

IvewcojRb  v.   3.P..:ii;o.. 

Nelson  v.   '.heL.iiore 

r*  o 

.Newell  V.  Randall 

157 

Nev;,T.an  v.  Phillipsbur-i-.R.'^.Oo  100 

NewiLan  v.  ^achary 

170 

Newton  v.  Harland 

27 

Nichols  V.  Marsland 

1>.2 

Nichols  V.  Newsom 

52 

Norris  v.  Litchfield 

79 

Noyes  v.   Colby 

126 

jgden  v.  Claycomb 
Criminal  ''^rit 
Csborne  v.  Veitch 

P. 
Padmore  v.  Lawrence 
Palmer  v.  N.P.R.Oc. 
Parkar.  v.  Cod  in 
pasley  v.  Freeman 
Pastens  v.  Adams 
Patrick  v.  Colerick 
Pay  son  v.  .I'acci-nber 
Peek  V.  Curnsy 
People  V.  iVarrsn 
Per ham  v.  Coney 
Phillips  V,  '^ilpers 
Pickering  v.  Rudd 
Pike  V, 


1 1-*^  _ 


20 


156 

110 
49 

134 

7:- 

30 

9 

142 
37 
47 

110 
12 

Q 


•^luninier  v.  Oiil 
Peoppers  v.  Missouri 
Pcoier  V.  Reed 
Pol  hill  V.  -alter 


Proctor 

y . 

Alan.s 

Proctor 

V. 

■'■ebster 

Puiln;sn 

V, 

Hill 

Furcali 

7. 

iowlsr 

Puljian.  V 

« 

Payne 

^ueen  v. 

c 

w. 

'auniers 

rnimbv  V.  '-'ociburv 


i-'aventa  v.  'mackintosh 
Read  v,  Coker 
neardon  v.  ThOiTipscn 
^sess  V.  Barbee 
Ssgina  V.  Justan 
Segina  v.  Saundsrs 
-ex  V.  Smith 
"^gynolds  \/ .   Mussey 
Nichardson  v.  Atkinson 
"-•OSS  V.  Johnson 
'-osssll  V.  r'otton 
■^ussen  V.  Lucas 
'Myalls  V.  Leader 
^yan  v.  N.Y.O.P.R.Co. 
Sylands  v.  f^letchei' 


Salisbury  v.  Herchenrcder 
'rchst'fer  v.  ■'■ashingtonR.Co. 
Schubert  v.  J.P.Olark  Co. 
:cott  V.  ohepherd 


^herfill 

V-  Van  Dusen 

Snith  V. 

L.5-  S.    .    .    ^ 

Smith  V. 

Land  Corp. 

SiTiitn  V. 

"tone 

Smith  V. 

fripp 

Smilh  V. 

Young 

Snyder  v 

.  Andrews 

115 

Stanley  v.   Powell 

15 

65 

State  V.  Beck 

3S 

?.9 

State  V.  Downer 

QO 

141 

Stearns  v.  Sampson 

k 

B? 

Steele  v.  burkhardt 

7S 

157 

Steinflseta  v.  Kelly 

C,C 

160 

Stephens  v.   ■'v:.rs 

.- 

154 

Stevens  v.   . „. ^is 

FF 

cp 

Stevens  v.  Sanipson 

154 

Stiles  V.  ^eesey 

-?: 

53 

Stone  V.            jck  *c.  C^o. 

P.'i 

9? 

Surroco  v.  3eary 

-1 

-uttcn  V.   'iauwatosfc 

■^  '^ 

"»eeny  v.  Oia  :;oiony  -.t-.Co. 

11? 

1S5 

T. 

■^'arleton  v.  l/c3a>?ley 

171 

114 

Tasker  v.   -tenley 

IS? 

oc 

Taylor  v.    "hitehead 

V  \Z 

Thoiras  v.  Cusrterniaine 

17-? 

■^hciras  v.  ''l.nchester 

?1 

Thorlsy  v.  Kerry 

V--. 

ISl 

Tillett  V.   '^ard 

1?7 

4i 

Thoirpscn  v.  Tashwocd 

1  crs 

''? 

TonsvTanna  v  Hunger 

V- 

1  -c 

'■^'cogcod  V.  "'pyring      15^  - 

"1 2n 

'i'aylcr  v.   Horrall 

r1 

1  :  -.^ 

Tuberville  v.  '^'avage 

k"; 

I'utf  V.    'arrran 

ao 

110 

I'ullay  v.  t^eed 

?-''= 

104 

30 
1^^5 

■'-'  \ 

1S6 

1  '- 


145 

Somervilie  v.  Hawkins  15C 
South  ^  fvorth  ^^.R. Co. v. Don.  Ill 
Southcote  V.  Stanley  117 
Spocnar  v.  I^anchester      ^^H 


Union  Fac.R."B:v. Collins  1?8 

U.S.    V.    sichap^soti  .3 

Jsill    V.    Hales  153 

V. 

Vaaderbilt    v.    vathia?  I66 

Veu^han    v.    Venlove  gfi 

Ficare    v.    ?:ileox  70 

Victorian    CcictE.    v.    Coultas  /a 
Village    cf   Cartspville   v.CocJc   f^ 


?:achupst    V.    Dan:.ite  ?s 

?.'asner    v.    Bissell  ise 
Wallace    v.    Merr-imaok:    f^a.QiO.         HP. 

talker    v.    Cronin  172 

V.'aptaan    v.    G*indell  iq 

Wason    V.    ralker  152 

Weaver    v.    '.Vara  la. 

V.'elch    V.    ?;esson  78 

V/entyfoPth   v.    McDuffie  4b 

'.Veils   V.    Kowell  126 

.Vetmore   v.    Mellingep  IA7 

iVhite   V.    Lang  fii 

White   V.    T-Tvitohell  io<? 

?;il€y    V.    ?;.Jer.R,Co.  «P 

"illieason    v.    Pr-eeai>  150 

'.Vinterbottom   v.    ^^pi^ht  lo? 

'Vood    V.    Lane                   "  o 

VJoolley    V.    Scovell  fii 

?;ya30pe    v.    Mahaska    Co.  16? 

Y. 

Youi  V.  Hapbottle  40 


J0^    rc  VOLUME  I 

OhacLer  T. 


Trespass i 

Becticn  i.    Assault i 

'Section  II.    Battery c  i 

Section  III.   ImprisoniVient 8  I 

Section  IV.    Trespass  upon  Real  Property 1?  ' 

Section  V.    Trespass  upon  Personal  Property ]' 

Section  VI.    Recusable  Trespasses l^'l  ! 

(a)  Accident  and  i/istake 1 

(b)  Leave  and  License 17  | 

(c)  Defence  of  Self  and  Closely  Allied  Persons 20  ' 

( a )  Defence  of  Property •"■~ 

(e)  Kecovery  of  Property <-- 

(f)  Preservation  of  Life,  Health,  or  PrcDirtv  c"  "ihers 31 

•(h)  Abatement  of  Nuisance ?- 

f i)  Viscellaneous  Excuses ?: 

{;])     Arrest  without  A'arrant 87 

(k)  Justification  by  Officer  under  Judicial  Process 37 

Chapter  II. 

Disseisin  and  Conversion 40 

Section  II.    Conversion 40 

(a)  Nonfeasance 40 

(c)  Destruction,  or  Change  in  Nature  or  Quality  of  a  Chattel. 42 

(c)  Asportation 4? 

(d)  Defendant  a  Purchaser,  Fleds^ee,  or  Bailee  of  a 

•ronaf ul  Transferor ■ . 

fe)  Misfeasance  by  Bailee 47 

(f )  Defendant  actinfi  as  Agent  or  Intermediary '. 

(g)  Miscellaneous  Acts  of  Dominion ..44-51 

(h)  Demand  and  Refusal c' 

f i)  'Excusable  Conversion c: 

Chapter  III. 

Hef  arnation 

■:ecticn  i.         Publication '  ' 

Section  II .       Libel 1>S 

Section  III.     Jlander 1^6 

(d)     DefaiTiatory  ''^ords  not  aciionable  per  se,  but 

causing  Special  taioage 1  -"^ 

Section  IV.       Justification 149 

(a)  Truth  of  Publication 1^" 

(b)  Repetition  of  Another's  StateiLsnt 1  ■ 

Section  V.         Absolute  Privilege i 

Section  ^'1.      Fair  Comment  or  Criticis;ii 


Section  VII.    conditional  Priviie^'e 152 

(a)  Frivile^^ed  Reports 152 

(b)  Conmiunications  in  the  Coninion  Interest  of  the 
'/aker  and  Receiver,  or  in  the  Interest  of  the 

*'aker  alone ■ 155 

^c)     ^otrmiunications  made  in  ihe  InteresL  oi  the 

Recipient 157 

(i)     ['xcess  of  Privilege 158 

Section  ^'I II .       V a  1  ice 1  /!P 

OHAPTfiR  IV. 

Malicious  Prosecution 1S3 

Section  I.    !i'alicicus  Prosecution  of  Oriirinals 133 

Proceeling 133 

Co)     Vant  of  Probable  Cause 134 

Ic)     Malice 135 

(d)  Daroaoe 166 

Section  V.    Malicious  Institution  of  a  3ivil  Action 

without  Arrest  or  Attachment Ic7 

Section  ^'T.   Vglicious  Abuse  of  Procar^s 1 


Q<~' 


OHAPIYrt  V. 

Malicious  Injury  to  the  Plaintiff  by  Influencing  the  Conduct  of 

a  Third  Person 166 

Section  I.    By  Inducing  or  Aiding  a  Third  Person  to 
Conimit  a  BreacJi  of  a  Legal  Duty  to  the 
Plaintiff 138 

(a)  '!'he  Duty  of  a  Servant  to  his  Master 138 

(b)  The  Duty  of  a  'Aif e  to  her  Husband 138 

(c)  The  Duty  of  a  Contractor 139 

(d)  The  Duty  of  an  Individual  not  to  Commit  a  Tort 170 

Section  II.   By  Influencing  a  Third  Person  '.Vhc  Owes  No  Legal 

Duty  to  the  Plaintiff 171 

(c)  By  Force  or  Threats 171 

CHAPTSR  VII. 

Malicious  Use  of  One's  Property  in  Order  Lc  Injure  the  Flff 173 

CONTfMTS  TO  VOLUME'  II. 
Chapter  I. 
Legal  Cause -S 

Chapter  II. 
l^'hether  Plaintiff's  Action  is  Barred  by  His  Own  ''>rcn£ 78 


Chapter  III. 

Negligence  in  Relations  not  Arisin.g  Directly  cut  of  Contract. 

Standard  of  Care Degrees  of  Care 83 

Chapter  IV. 
Concur ibutory  Negligence 87 

Chapter  V. 
Imputed  Ksgligence xP 

Chapter  VI. 

Whether  Negligence  of  ?.<3ker  or  Vendor  of  Chattel  may  make  him  liable 

to  Persons  other  than  these  contracting  with  him IC- 

Chapter  "'  K 

Duty  of  Care  on  the  Part  of  Occupier  of  Land  or  Buildings 108 

Section  1.    Duty  of  Care  towards  Persons  using  Adjacent 

Pub  1  ic  '^  ay 108 

Section  II.   Duty  of  Care  towards  Trespasser 108 

Section  III.  Duty  of  Care  towards  Licensee 114 

Section  IV.   Duty  of  Care  towards  Invited  Person 11^  ' 

Chapter  VIII. 

'i'xtra-Ha2,ardous  Occupations.   Acting  at  Peril.   Duty  of 

Insuring  Safety 119 

Chapter  IX. 

Liability  for  Dire  or  '^ xpiosives 124 

Chapter  X. 

Liability  of  Owner,  or  Keeper,  of  Animals 123 

Section  1.    Trespass  by  Animals  on  Land 126  \ 

Section  11.   Dama^^a  bv  /inimals,  other  than  Trespass  on  land 130  ■ 

"Chapter  XI. 
Deceit 33d 

Section  1.    Ceneraliy.  -  Nature  of  Representation 134 

Section  II.   Representation  not  True  in  Fact 135 

Section  III.  Defendant's  Relief  as  to  Truth  of  Representation. . .1?7 
Section  IV.   Defendant's  Intent  that  Plaintiff  should 

act  on  the  Representation 140  ^ 

Section  vi.   A'hether  Plaintiff  is  barred  by  failing  to  use 

the  Means  at  his  command  to 

detect  the  Falsehood ]''r 


The  •^'l•ill^n  Law  consists  oi  ihe   OonsLituticn  and  the  Statutes. 

The  C^OBinion  Law  consists  of  the  decisions  aiade  by  the  judges, 
that  is,  is  %o   be  found  in  the  reports  of  the  decided  cases. 

It,  is  neather  necessary  nor  possible-  to  have  a  case  on  every  point 
of  law  which  a^ay  arise,  but  one  shouio  know  the  principles  upon  which  the 
cases  have  beeh  decided  which  have  already  arisen,  and  should  apply  those 
principles  to  all  cases  as  they  coo'e  up. 

Formerly  students  of  law  were  put  to      studying  its  principles 
fros!  text  books.    in  cur  system  we  work  out  the  principles  frorri  de- 
cided cases,'  and  then  read  what  the  text  writ.ers  have  drawn  out  of  the 
same  cases. 

A  Tort  is  a  wrons  noi  arising  by  aisre  breach  ci  contract  ana  lor 
which  there  is  a  remedy  by  a  civil  action  at  the  suit  of  the  party  in- 
jured.  A  crime  generally  involves  a  lort  but  a  Tort  does  not  necessa- 
rily include  a  criire.   A  Fort  is  not  a  irere  breach  of  contract,  but 
there  niay  be  a  Tort  in  connection  with  a  breach  of  contract. 

BOCKS  ON  rORTS, 

Thirty  years  ago  Ghitty  on  Pleading  was  the  best  book  on  torts. 
Today  there  are  several  good  works:- 
AMERICAN  fiZ  Cooley  on  Torts. 

Non-Contract  Law  Bishop. 

Bigelow's  iie.Tients  of  the  Law  on  Torts. 

ENGLISH  TORKS.     Pollock  on  lorts. 

Clerk  and  Lindsell  on  Torts. 
Pollock  is  the  best  text  book  for  our  purposes.   Clerk  and  Lind- 
sell will  be  often  referred  to. 

Chapter  1.  Trespass. 
Section  1.  Assault. 

1.  De^  3.  and  Wife  v.   .    \  H  the  Assizes, 0348  or  3349. 

'h,   came  to  ?'s  tavern  at  nient  after  wine  and  pounded  on  the 
door  with  a  hatchet,'  the  door  being  closed.   S's  wife  put  her  head 
out  at  a  window  and  told  him  to  stop,  and  he  struck  at  her  with  the 
hatphet  but  did  not  hit  her.   HFjLD,  an  assault  nevertheless,,  for  there 
was  reasonable  apprehension  of  physical  harrn,  though  none  actually  in- 
flicted. 

'he  inquest  is  about  the  san^e  as  the  ir.odsrn  jury.   The  harm  done 
was  the  frightening  of  the  female  plff.   The  last  sentence  of  the  cpinicn 
was  by  the  reporter. 

Tuberville  v.  Cavage  P.  2,   Kind's  Bench,  ISSa. 

Deft.,  to  justify  a  battery  on  Plff.  showed 
that  Flff.  putting  his  hand  on  his  sword,  said  "If  it  were  not  assize- 
tiri;e,  I  would  not.  take  sucb 'U.nguage  from  you";  HBLDj,;, no  justification; 
for,  where  no  PRSSENt  intention  to  inflict  harrr.  appears,  there  is  no 
assault. 


The  act  was  a  threatening  one,  but  the  lansua^e  accofiipanyinfe  it 
showed  that  there  was  no  intention  to  assault.   •■'ords  are  not  the  only 
thine  that  would  show  the  absence  of  such  intent.   It,  might  be  otherwise, 
indicated  by  an  act,.  But,  the  absence  of  intent  does  not  excuse  negligence 

y.QKTiN  V.  SHOFFSft  P.  2,.  Nisi  Friuf,  1823. 

Deft,  rode  after  Flff .  rapidly,  causing  hini  to  take  refuge  in  his 
garden.   Daft,  used  threatening  language,  "Come  out  and  1  will  lick 
you  before  your  own  servants."   H'i":Ln,  an  assault  as  it  cut  Flff.  in 
terror  and  caused  him  to  flee. 

Although  there  was  no  physical  injury  the  apprehension  or  fear  of 
it,  caused  the  Plff .  was  enough  to  constitute  an  assault.   Oase  is  in 
line  with  the  preceding  two  to  show  that  actual  physical  contact  is  not 
necessary. 

.-■^"•'^PHF.ifi  V.  'AX'  .      .   Nisi  Frius.  1830. 

Flff,  was  chairxan  ci  a  rreeting.   Ceft.  was  ccistercus  and  on 
uiotion  it,  was  voted  to  expel  hin;  from  the  room.   He  said  he  would 
pull  the  chairican  froir.  his  seat  before  he  v/ould  be  expelled  from  the 
room,  and  i mined iat.sly  advanced  with  his  fist  clenched  toward  the  chair- 
man, but  was  stopped  by  the  churchwarden,  who  sat  next  but  one  to  the 
chairman,  at,  a  time  when  he  was  not  near  enough  for  any  blow  he  might 
have  meditated  to  have  reached  the  chairman,  but,  the  witnesses  said 
that  it,  seemed  to  them  that  he  was  advancing  with  an  intention  to  strike 
the  chairman.   "^  L" ,  if  he  was  so  advancing  that,  within  a  second  or 
two  of  time,  he  would  have  reached  the  Flff.,  it  is  an  assault. 

This  case  shows  that  there  must  be  not  only  words  evidencing  an 
intention  to  assault,  but  also,  present  ability  to  carry  the  intention 
into  effect,  and  something  done  in  pursuance  of  the  intention. 

To  sum  up  the  cases  thus  far,  physical  contract  is  not  necessary  to 
constitute  an  assault.  1.  De  S,  and  'i*;ife  v.  W.  De  S.  and  Mortin  v. 
Shoppee.   There  must  be  an  intention  to  assault.  Tuberville  v.  Savage. 
There  must  be  present  ability  to  carry  the  intention  into  effect,  and 
something  done  towards  carrying  it  into  effect.   Stephens  v.  .Viyers. 

^?:AC  V.  "CK"R,  P.  :.  Jonion  Pleas,  •   .    Deft,,  and  his  men 
surrounded  Flff.  and,  with  sleeves  and  aprons  tucked  up,  threatened  to 
break  his  neck  if  he  didn't  leave  the  room.    He  left.      ,  that 
there  was  an  assault,,,  as  there  was  a  threat^  of  violence  exhibiting  an 
intention  to  assault,  and  a  present  ability  to  carry  the  threat  into 
execution. 

I'his  case  introduces  auoti.^i.-  eienicint,  viz.,  the  reasonableness  of 
the  apprehension  of  violence.   There  must  be  reasonable  apprehension 
of  violence.   Threats  are  not,  sufficient;.   .Acts  must  accompany  then: 
looking  to  immediate  violence.   Aords  may  explain  an  otherwise 
doubtful  action.  In  this  case  the  doubt  was  whether  it  was  g  reascn- 
ablc  fear. 

^   "rule  nisi"  is  a  conditional  order  of  the  court,  an  order  v/hich 
will  become  final  unless  good  cause  be  shown  why  it.  should  not.   Notice 
is  then  served  on  opposite  party. 


In  abstracts,  it  is  generally  best,  to  state  briefly  how  the  ques- 
tion came  bei"ofe  the  court.   Two  or  three  technical  words.   Also 
the  nature  oi'  action,'  and  of  Deft.'s  plea.   Then  give  just  enoueh 
fact/fe  to  (I'ake  the  point  of  law  clear.    I'hen  the  point  decided  and  the 
reason  of  the  decision. 

\  Head  v.  3oker  is  also  reported  17  Jurist  990  and  ??■  L.J.,i|i.3.  ?01. 
\The  reasonableness  of  Plff's  apprehension  is  a  question  of  fact  for 
the  .iury.   '.^ere  words  do  not  constitute  an  assault,  but  they  are  admit- 
ted t(5  eiv3  character  to  acts. 

OSBORN  V.  VEIfCH,.  P.  7.  Nisi  Frius,  1858. 

Defts.  were  walking  with  loaded  guns  at,  half-cock  in  their  hands 
in  a  field  of  plainiiff's.   On  refusing  to  withdraw,,  and  being  approaches 
by  Plff .•  they  pointed  their  2uns  toward  the  latter,  and  threatened  to 
shoot,   H?:LD,  to  be  an  assault,:  as  pointing  a  loaded  gun  at  a  person  is 
in  law  an  assault. 

j'he  kina  of  intent  necessary  to  constitute  an  assault,  is  the  reason- 
able intent  gathered  by  the  plff.  from  the  external  surrounding  circum- 
stances and  not  "the  hidden  intent"  of  the  party  assaulting.   Here  Plff. 
would  naturally  suppose  the  guns  were  loaded. 

mU^   STjVrf:S  v.  Richardson,  P.  8,  U.S. Circuit  "curtv  1SH7, 
■  Deft,  came  into  a  house  where  Mrs.  Shelton  was  sitting,  and  raising  -a 
club  over  her  head,  threatened  to  strike  her  if  she  said  a  wora.   HiiiLD,. 
to  be  an  assault.,' as  Deft.'s  language  showed  his  intent  to  strike  upon 
violation  of  a  condition  which  he  had  no  right  to  impose. 

This  was  an  indictment  for  a  crin'inal  assault,  but  the  rule  of  law 
would  have  been  the  sanie  had  the  action  been  a  civil  one. 

B?ft::)H  V.  Hancock,  P.  8,  New  Hampshire.aSSS, 

Oeft..  pointed  a  gun  at  Plff.  in  an  excited  and  threatening  manner. 
Plff.  did  not  know  whether  or  not  the  gun  was  -loaded,  and  in  fact  the  gun 
was  not  loaded.   H5LD,:  that  it  was  an  assault,  on  account  of  the  very 
reasonable  fear  produced. 

There  is  no  present  ability  to  hartr.  bodily.   ''hy  was  Deft,  liable? 
He  had  ability  to  create  fear. 

"It.  is  an  assault  if  the  Plff.  had  reasonable  cause  to  believe  gun 
loaded  and  Plff.  wss  actually  put  in  fear  of  receiving  bodily  injuries 
therefrox,  and  the  circumstances  of  the  case  were  such  as  ordinarily  to 
produce  such  fear  in  mind  of  reasonable  man."   .Phis  was  held  to  be  law  in 
110  Mass.  409  and  2  Humph.  (Tenn. )  ^57. 

::onipare  this  case  with  Osborne  v.  Veitch.   They  show  what  kind  of  ai. 
intention  is  necessary. 

Suppose  the  following  cases :- 

(a)  The  sun  wss  not  iocxuc,;  ana  Plii.  knew  il  ana  the  iJeft. 
thinking  however  that  it  was  loaded,  snapped  it  at  the  plaintiff.   An 
action  for  assault  would  probably  lie. 

(b)  /\  is  weak,i  and  B  is  strong;-.  B  anticipates  a  blow  from 
A,,  when  in  an  altercation  with  hi.ir:.   Here  an  action  for  assault  would 
lie.   The  fear  or  apprehension  necessary  to  [pake  an  act  an  assault  does 


4. 
not  necessarily' have  Lo  be  a  craven  fear.   It  i?^  sufficient  if  it  is 
Tiereiy  aporehsnsion  of  physical  contact. 

(-)     A  is  blind;  B  intends  to  kill  him,  and  snaps  a  gun 
at  him.   Gun  dc)es  not  go  off.   '■  does  not  know  of  this  fact,  but  when 
told  of  it  later\  brings  an  action  for  assault.   '.ould  the  action  lie 

here'^ 

i.   On  the  'ground  of  present  ability,  or  means,  the  action  would 

lie. 

jn  tna  Krouau  ol   apprehension  the  action  would  not  lie,  but  Frc- 

tessor  r.uith  thinks  an  action  lies. 

3T~iiHN3  and  '^UF'']  v.  3AMPS0N..  P.  ii,  l/aine,  1871. 

reft.  33  landlord  gave  notice  to  ^^^s.  Stearns,  his  tenant,  to  leave 
his  house,   3he  refused.   'Vhereupon  Ceft.  and  his  aien  retnoved  furniture, 
took  out  windows,  prevented  food  from  being  brought,  let  in  a  dog,'  etc., 
so  that  ^*rs.  Stearns  finElly  left  by  coirspulsion  with  an  officer  and  was 
sick  several  week.  .    L'),  there  was  no  assault.   Indignities  which  em- 
barrass and  distress  may  not,  constitute  assault. 

i''ords  do  not  constitute  an  assault  and  embarrassing  acts  do  not  nec- 
essarily constitute  an  assault. 

Tn  criniinal  cases,  the  ground  for  conviction  for  assault  is  usually 
u:r„  o^me  as  would  sustain  a  civil  action.   Aords  indicating  intention  to 
assault  are  not  actionable,  because  Oeft.  can  be  put  under  bonds  to  keep 
the  peace,  and  because  it  would  cause  the  bringing  of  frivolous  actions. 

\'TGT0HIAN  RAIL'^AYS  COMMI33I0N!i"RS,' Defts.  and  JamSS  "OULTSS  and  MARY 
00ULTA3,  Plaintiffs,  F,  13.  Privy  Council,  1888. 

Defendants  (husband  and  wife)  were  driving  one  evening.   wcming  to  a 
railway  crossing  they  found  the  gates  closed.   The  gate-keeper  opened  the 
nearest,  and  then  walked  over  to  the  other.   Oeft.  followed.   A  train 
was  coming  along  at  great  speed;  Deft,  barely  escaped  being  hurt.   Mrs., 
3oult3s  fainted,  and  the  shock  caused  8  considerable  illness.   After  su- 
ing and  winning  their  case  in  the  lower  court,  this  case  cajiie  up  on  ap- 
peal.  Hf-LD,  that  the  dangers  were  too  reniote.   The  tnaiish  law  of  neg- 
ligence is  that  the  danoages  must  be  the  natural  and  reasonabl'e  result  of 
Deft's  act;  such  a  consequence  as  in  the  ordinary  course  of  things  would 
flow  froif  the  act.   The  nervous  shock  in  this  case  was  not  such  a  conse- 
quence. 

See  full  report  of  this  case  in  1?  Vict.  L,R.  895,  in  which  is  sia- 
,ted  an  important  fact  omitted  in  the  report  of  Privy  Council  in  13  Ap. 
Gas.  ?22,  vi2. ,■  that,  "the  female  plaintiff  received  a  severe  shock,  which 
brought  on  a  !niscarri:ge." 

Query:   Does  not  a  nervous  sncck  invfolve  physical  injury? 

In  such  an  action  as  this,-  it  is  necessary  to  prove: 

(a)   ihat  the  defendant  was  negligent;  and  (b)  that  the  negligence 
caused  the  damage;  and  (c)  that  the  dainage  so  caused  by  defendant  to 
plaintiff  is  of  a  kind  of  which  the  law  will  tske  noiice,  and  for  which 
it  will  afford  redress  in  a  civil  action.   As  to  (c)  see  S  Harvard  Law 
Review,  203;.  204. 


If  mere  mental  pain  is  caused,  it  is  ground  of  action  if  intentional. 
Query:   Is  it  so  if  caused  by  negligence? 

It  is  not  true  to  say  that  the  law  does  not  allow  a  recovery  for  mer^ 
mental  fear,  as  is  shown  in  cases  of  assault.   in  assaults  however,  the 
fear  is  intertticnally  caused. 

Frivy  Council  said  that  the  damages  must  be  the  reasonable  result  of 

defendant's  act. 

^s  contra  to  Coultas  case,  see:  76  Texas,'  210,  48  t/iinn..  lc>'t,  cz   N. 

Y.  Supp..  74^. 

As  almost  accord,  see  85  i'ex.  412. 

As  to  telegraph  cases  (mental  anguish  caused  by  delay  of  message 
see:  37  -Vis.  1,55  Fed.  Rep.  503,  9  Lewis  Amer.  R.R.^  C.  Rep.  770  -  773. 

See  also,  Innes  on  Torts:   harm  to  person  sec.  17. 

The  court  held  that  a  nervous  shock  was  a  mental  injury  and  that  for 
a  mental  injury  a  plff.  cannot  recover.   This  latter  is  contra  to  tele- 
graph cases  which  hold  that  for  a  mental  injury  Plff.  may  recover. 

In  this  case  there  was  no  intent  to  harm.   So  the  Question  arises 
may  negligence  create  liability  for  assault?   ^'ost  certainly  it  may.   In 
the  great  majority  of  cases  to  that  effect  there  is  however  intent  to  in- 
jure. 

In  addition  to  references  cited  by  note,  and  in  opposition  to  aecis- 
ion  is  ?5  N.Y. Supplement  7^4. 

Innes  on  T'orts,  Section  17  discusses  this  principle  Lhoroughly.   He 
says,  "Injury  to  person  consists  of  harm  to  body  or  mind,  provided  that 
the  prejudicial  effect,  so  termed,  is  a  physical  condition,  capable  of  be 
ing  tested,  and  is  manifested." 

The  telegraph  cases  are  reported  55  I^'ed.  Rep.  803  and  57  H. 'A'. Repor- 
ter 978. 

Section  2,  Battery,  Cole  v.  Turner.  P.  17,  Nisi  Prius,  1704 

Holt, C.J.  declared  that  the  least  touching  of  another  in  anger  is 
battery;  thit  a  gentle  touch  without  violence  or  design  of  harm  is  no  bat- 
tery, and  that  violence  used  in  a  rude  or  inordinate  manner  is  a  battery. 

The  idea  of  hostility  is  involved  in  the  decision  of  Cole  v.  Turner. 
A  slight  touch,  without  violence  or  malice,  is  permitted  by  usages  of  so- 
ciety. 

Gibbons  v.  Pepper  P.  17,  King's  Bench,  1695. 

Trespass,  assault,  and  battery.'   Deft,  pleaded  his  horse  ran  away, 
and,  through  no  fault  of  his,  injured  the  plaintiff.   Plff.  demurred. 
HELD,  that  as,  if  a  man  riding  a  horse  injures  a  bystander,  he  is  liable 
only  if  accident  resulted  from  his  own  fault.  Deft,  should  have  given 
this  justification  in  evidence,  upon  the  general  issue  pleaded.   He  did 
not,  so  judgment  must  be  given  for  plaintiff. 

Deft's  plea  amounts  to  the  general  issue.   He  virtually  said  that 
the  act  was  not  his  act.   Accordingly  he  could  not  plead  in  justifica- 
tion of  an  offense  which  he  had  not  com.mitted.   The  case  was  lost  on 
technical  grounds,  Plff.  having  pleaded  in  justification  instead  of  the 
general  issue. 


?his  case  is  also  reported  in  Ames  cases  on  pleading  F.  58. 
Holmes  and  Wife  v.  Mather,  P.  19,  Exchequer,  1S75. 
ni  Deft.,  with  a  groom  as  driver,  were  out  with  a  pair  of  horses. 
The  animals  became  frightened  and  uninjnageable.   Mter  running  a  long 
distance  they  finally  came  to  a  corner,  where  they  must  turn  or  run  into 
house  opposite.   Groom  pulled  hard  on  right  rein  but  could  net  quite 
bring  them  around;  a  smash-up  resulted  and  female  Plff.  was  knocked  dov.ii 
and  badly  injured.   A  verdict  for  the  Plff.  having  been  granted,  and  a 
rule  nisi  having  been  obtained,  it  was  HELD,  that  the  accident  was  not 
caused  by  act  of  Plff.,  but  happened  in  spite  of  him.   An  accident  which 
driver  of  runaway  horses  is  doing  his  best  to  prevent  is  net  actionable. 
Rule  discharged. 

True  test  of  battery  is  not  whether  a  hostile  intent  en  the  part  of 
the  Deft,  but  whether  an  absence  of  consent  on  the  part  of  the  Plff.  can 
be  inferred.    "lerk  and  Lindsell  en  Torts,  P.  131. 

In  Holmes  v.  Vather  there  is  no  choice  of  things  to  run  into  made  by 
Deft. 

Inne-o  v.  >ylie  P.  ?4,  Nfisi  Prius,  184-1. 

Assault.   Plif.  undertook  to  enter  a  room  where  a  society  was  din- 
ing, and  was  prevented  from  entering  by  i   policeman,  who  act"fed  at  orders 
of  Deft.   H'^iL'^,  that  if  policeman  was  entirely  passive  in  obstructing 
Flff's  entrance,  there  was  no  assault.   If  he  took  active  measures, 
there  was. 

Here  passive  obstruction  is  not  an  assault.  —  Pollock. 

Had  Plff.  alleged  exclusion,  he  would  have  been  entitled  to  an  ac- 
tion, but  not  for  assault.   Plff.  must  prove  what  he  alleges,  otherwise 
thrown  out  for  "variance." 

Coward  v.  Baddeley,  P.  ?4,  l-^xchequer,  1859. 

Assault  and  giving  Plff.  into  custody  of  police.   Deft,  was  direct- 
ing a  stream  from  a  hose  on  a  fire.   Plff.  thought  he  wasn't  doing  his 
work  well,  so  began  to  give  advice.   finally  laid  hands  on  Deft,  to  at- 
tract his  attention.   A'hereupon  Deft,  gave  him  over  to  a  policeman  and 
he  was  imcrlsons-J  -nd  taken  before  .T3ci'^tr'=Jtes.   ^■"■eft.  pleads  Plff's  as- 


inere  is  no  douot  but  what  Fiff.  laid  hands  on  Deft.,  but  jury  said 
that  it  was- not  done  hcstilely.   The  Zt.   said  that  touching  a  m.an  to  at- 
tract his  attention  was  not  an  assault  and  battery,    such  as  will  sup- 
port a  criminal  prosecution  or  justify  an  arrest.   Dcurt  did  not  settle 
at  all  the  question  of  civil  damages,  but  only  the  criminal  liability. 
In  this  case  the  act  of  Plff.  was  without  any  implied  license  from  the 
firem.an  to  touch  him.   There  was  ^'-ove   force  t>sn  ivgs  necessary,  so  Plff. 
was  liable. 

Hostile  intent  is  not  necessary  for  a  civil  battery. 
Dlerk  ana  Lindsell  on  Torts  P.  131  say  the  true  test  is  noL  whether 
a  hostile  intent  on  part  of  ';eft.,  but  whether  an  absence  of  consent  en 


7. 

Lhe  Dart  of  ihe  Plff.  can  be  inferred. 

If  Louched  on  shoulder  by  friend  to  attract  attention  it  is  no  tres- 
pass,' if  within  ordinary  customs  or  usages  of  society. 

Original^ Writ.  p.  27. 

Throwing'  any  liquid  upon  a  person  wouia  oe  an  assault  and  baLLery. 

See  the  note  on  Ames  on  p.  27. 

Battery  does  not  necessarily  mean  an  injury  inflicted  by  an  instru- 
ment held  in  the  hand.   It  may  be  thrown,  shot,  etc.   It  has  been  held 
that  the  foilowing  are  trespasses  to  the  person :- 
i.   Injury  to  the  clothes  on  the  back. 

2.  Reuioving  an  ulster  from  the  Plff. 

3.  Striking  a  cane  in  the  Piff's  hand. 

4.  Cutting  a  rope  connected  to  the  Piff's  slave  and  Plff. 
Dubuc  De  Marentiiie  v.  James  Oliver,  p.  27,  New  Jersey.  1808. 

Plff.  was  out  driving.   Deft,  struck  his  horse  violently  with  a  large 
stick.   On  trial  for  assault  before  a  Justice  of  the  Peace,  Plff.  was 
given  damages.   Assigned  for  error  that,  action  for  assault  cannot  be 
supported  before  a  Justice  of  the  Peace.   In  the  upper  court  it  was 
HUiJ,  that  act  of  Deft,  certainly  was  an  assault  on  the  person  of  the 
Plff.  and  so  the  Justice  haa  no  jurisdiction.   If  trespass  on  property 
had  been  charged,  Fiff.  would  have  had  to  show  injury  to  horse. 
Judgn'ent  reversed.    :upposed  Case: 

B,  standing  behind  A.'  and  within  shooting  distance,  fires  a  loaded 
gun  at  A,  intending  to  kill  him.  but  does  not  hit  hiir;.   A,  who  is  stone 
deaf,  is  not  ir:ade  aware  of  the  attempt  of  B,  until  the  next  day,' when  he 
is  informed  of  it  by  a  letter  fron;  a  bystander. 

Can  A  maintain  an  action  (civil)  agains-t,  B? 

See  Pollock  on  Torts,  2nd  hd.  193,  Note  (•:,• 

See  Bigelow  'I'le.  of  J'orts,  ^th  ^i.   122,  note  c. 

DSFINITIONS. 

Bigelow.  (p.!! 24)  "A  battery  consists  in  the  unpermitted  application 
of  force  by  one  aian  to  the  person  of  another." 

SA!/I';.  (p. 121)  "A  owes  to  B  the  duty  to  forebear  to  hit  or  touch  him 
in  anger,  rudeness  or  negligence,  or  in  the  cojimission  of  an  unlawful  act'.' 

FRO?'.  Jeremiah  Smith  says,  "Battery  is  the  unpermitted  application  c 
force  by  one  man  to  the  person  of  another,  directly  or  indirectly,  either 
hostiieiy  or  rudely  though  without  damage,  or  negligently  with  damage." 
Force  is  physical  contact..   Unpermitted,  is  not  permitted  either  by  the 
plaintiff  or  by      the  law.   i-ee  for  other  definitions.  Cocley  on 
Torts,,  p.  1-".   Bigslow.  ^J^T^rt^  of  Torts,' ^^'d.  p.  12^.- 

ASSAULrS. 

Vol.  2,  Bisncp's  I'ievv  OriTiinal  Law.  Sec.   >i.,   is  best,  definition. 

"An  assault  is  any  physical  force,   partly  or  fully  put  in  rroticn, 
creating  a  reasonable  '^r'-i-ehension  of  immediate  physical  injury  tc  a  hurrar 
being." 


8. 

P   .  luith,  (founded  on  foregoing),  "An  assault  is  any  physical' 
force,  part/iy  or  fully  sel  in  niotion  (unlawfully)  by  a  human  being,  crea- 
ting on  theipart  of  another  human  being,  a  reasonable  apprehension  of  iiii- 
;nsdiaL,e  unpei'mitted  physical  contact  (with  himself)." 

For  oth^  definitions  of  assault,  see  Cooley  on  Ton.-;  p.  !:■:,  •.•.aich 
seems  to  excli^de  "negligence." 

PROF.  Sniilh  suggests,  that  on  a  bar  sxaniination,  he  would  add  to  his 
definition,'  that  the  candidate  was  perfectly  aware  that  by  an  assault  was 
ordinarily  understood  to  be  included  the  idea  of  hostile  intent,;  and  by  a 
battery  was  ordinarily  understood  to  be  included  as  a  necessary  element 
anger  or  rudeness,  but  that  the  candidate  was  trying  to  give  something 
more  than  a  mere  technical  definition,  and  had  in  mind  what  is  an  actual 
violation  of  t,he  right  of  personal  safety,  and  therefore  extended  the 
terms  of  assault  and  battery  to  these  actions. 

In  Innes  on  Torts  it,  is  said,  "A  man  is  not  said  Lo  intrude  upon  the 
person  of  another,  when  his  conduct  is  not  hostile  or  insulting,  and  the' 
damage  done  is  of  such  a  character  that  It  vniJ  not  be  resented  by  a  pert- 
son  of  ordinary  sense  and  temper." 

JON'iiS  V.  /;YL1E:   Mere  passive  obstruction  is  not  an  assault. 

OOW.ARD  V.  BADOELFjY:   Test  is  absence  of  consent.   See  Clerk  and 
Lindsell,  p.  131,  as  to  actions  for  wrongful  contact.   "The  true  test,  is 
not  whether  a  hostile  intent  on  the  part  of  the  defendant,  but  whether  en 
absence  of  consent  on  the  part  of  the  plaintiff."   C!J-  L. 

SFj'S  Stephen's  Digest  of  Criminal  [iaw.  Art.  Jr'll .   "Such  acts  as  are 
reasonably  necessary  for  the  common  intercourse  of  life  are  not,  assaults 
or  batteries,  if  they:  are  done  for  the  purpose  of  intercourse  only,  anc 
with  no  greater  force  than  the  occasion  requires." 

SF:f:  also  Pollock  on  Torts.  2nd  f:d.  p.  194. 

QU'^RY:  Define  the  right  to  personal  safety,  for  the  violation  cf 
which  the  law  affords  a  remedy  by  a  civil  action,  dropping  the  terms  cf 
"assault"  and  "battery".    ''.lements  of  iinswer  are: 

1.  Freedom  from  hostile  or  rude  contact.,  even  if  without  damage. 

2.  Freedom  froni  negligent  contact  resulting  in  actual  physical 
harm;  otherwise  expressed  as,-  negligent  contact  with  damage. 

3.  Freedom  from  reasonable  fear  of  immediate  (unpermitted)  phisical 
contact,  when  such  fear  is  occasioned  by  the  acts  of  anotjier,  and  not  by 
words  only. 

t-i.D.   If  we  include  the  "deaf  man's  case",  „o  must,  ada,  -  rriecoji/ 
from  appreciable  immediate  peril,  intentionally  caused  by  the  hostile  act 
of  another,  even  Lhoueh  such  net  is  unknown  at  the  time  to  the  person-  in 
peril. 

Section  '■-.,   Imprisonment,  p.  HO, =  Note  by  Thorpe, C. J.,         1348. 

There  is  said  to  be  an  imprisonment  in  any  case  where  one  is  arieste: 
by  force  and  against  his  will,  although  it  be  en  the  high  street,  or  elss- 
vi^here,-  and  not  in  a  house,  etc. 

3KNNEfi  V.  SPARKS,  p.  30,  King's  Bench,  170'L 

Bailiff  with  a  warrant  for  B's  arrest,  approached  him  and  told  him 


9. 
that  he  had  a  wacrant.   A  hereupon  B  kept  him  from  touching  him,  and  Re- 
treated into  his  house.   And  it  was  attempted  to  show  that  B  was  in  con- 
tempt ci"  court.   H!i]LD,'  bare  words  will  not  make  an  arrest.   To  make  the 
arrest  there  must  be  a  physical  touching,  or  what  is  tantamount,,' a  power 
of  taking  immediate  possession  of  the  body,  and  the  party's  submission 
thereto. 

RU33ILN  V.  LU3AS..  p.  -l,  nisi  prius,  1S>^. 

Action  against  sheriff  for  an  escape.   Question  whether  person  was 
arrested  or  not.   Officer  went  to  him  and  said,  "Vr.  Hamer,  I  want  you." 
Hamer  told  him  to  wait  outside  and  he  would  join  hiir,.   Officer  went  out 
and  Hamer  escaped. 

Mere  words  not  submitted  to,  do  not  constitute  an  imprisonment. 
This  action  was  brought  for  an  escape,  and  not  for  failing  to  use  due  dil- 
igence to  ii;ake  an  arrest.   Flff.  should  have  brought  an  action  on  the 
case  for  not  using  due  diligence,  or  for  improperly  failing  to  arrest. 
Plff.  could  have  brought  the  latter  action,  even  after  bringing  the  one 
he  did  in  this  case.   liaise  imprisonment  is  the  unlawful  imposition  cf  I 
restraint  upon  a  person  against  his  will  whereby  he  is  entirely  or  in   / 
large  part  deprived  of  his  natural  liberty  of  action. 

if  Hamer  had  gone  with  the  officer,  the  arrest  would  have  been  good. 
Acquiescence  alone  is  not  sufficient,  but  that  together  with  an  act  sig- 
nifying acquiescence  is  sufficient. 

AOOD  v,  LAN^'  and  ANOTHE-R,  p.  HI,  Nisi  Prius.  1834. 

Plfi.  was  in  a  store.   Cieatcn  came  in  and  demanded  xoney  Plff. 
owed  him.   On  being  refused  he  went  out  and  returned  with  Lane,  his  at- 
torney's clerk.   Pointed  to  Plff.  and  said,  "This  is  the  man."   Plff. 
said,  "I  suppose  1  am  to  go  with  you,"  and  being  assured  in  the  affirma- 
tive he  went  out  with  them.   As  a  matter  of  fact  deft,,  had  no  power  to 
arrest  Plff.   HSLC,  that  if  you  order  a  man  tp  go  with  you,  and  he  goes, 
against  his  will,'  thinking  you  have  power  to  force  him  to  do  so,  it  is  ar, 
arrest.   The  question  is  whether  he  goes  voluntarily  or  involuntarily. 

It  was  decided  that  an  arrest  can  be  made  without  touching  a  man. 
If  a  man  being  ordered  to  do  so  goes  with  another, ■  supposing  that  other 
to  have  the  power  to  force  him  to  do  so,  it  would  be  an  arrest,,  though  an 
unlawful  one,  if  the  person  making  the  arrest  had  not,  the  lawful  author- 
ity to  make  such  arrest. 

FIKF,  v.  HANSON,  p.  33,  New  Hampshire.  18S8. 

Trespass  for  assault  and  false  imprisonment.   Deft.s,  were  'Selectmen 
of  a  town.   They  assessed  a  list  of  taxes  and  appointed  a  Collector. 
Latter  was  in  room  with  Plff.  and  after  she  had  refused  to  pay  her,  tax  un- 
til she  was  arrested,  he  told  her  that  he  arrested  her.   Then  she  paid. 
HftLD,.  that  in  ordinary  practice  words  are  sufficient  to  constitute  an  im- 
prisonment., if  they  impose  a  restraint  upon  the  person,:  as  in  this  case. 

'A'ords  uttered  with  ability  to  enforce,  and  submitted  to,  constitute 
an  arrest. 

The  case  of  Herring  v.  Boyle  was  omitted,  cut  it  seems  to  lay  down 
that  the  presence  of  the  party  supposed  to  be  imprisoned,  and  his  cogniz- 
ance of  such  restraint,  is  necessary    ... 

-  V-   ihe  party  „-ust  u 

"^t  be  unwili,n^  lo  po 


10. 
thoueh  he  tv-v  fo  voluniarily. 

Lt  Col   ,   'ssouL'i, 

"or  two  weeks  FJfft'.  was  constyntly  guarded  by  detectives  employed 
by  DefL.   At  no  tinre  was  he  free  to  come  and  go  as  he  pleased.   Con- 
stantly examined  and  cross-examined  touching  the  robbery,  clearly  showing 
that  he  was  regarded  as  a  criminal,  and  that  force  would  be  used  if  he 
tried  to  'escape.   In  fact  he  was  deprived  of  all  real  freedom  of  action. 
HELD,  to  h)e  unlawful  imprisonment. 

BIRD  V.  JONES,  p.  36,  Queen's  Bench,  1S45. 

Part  of  highway  was  enclosed  for  spectators  of  a  boat  race,  who  paid 
for  their  seats.   Plff .  came  along  and  wished  to  pass  through.   He  was 
checked,  but  after  a  short  struggle,  got  in.   Two  policemen  were  then 
stationed  to  keep  him  from  going  any  farther.   He  remained  where  he  was, 
although  informied  that  he  might  go  out  in  any  other  way.   HELD,^  by  a  ma- 
jority of  the  court,  that  to  call  this  imprisonment  would  be  to  confound 
partial  obstruction  and  disturbance  with  total  obstruction  and  detention. 
To  constitute  imprisonment  a  man's  liberty  must  be  annihilated,'  not  limi- 
ted merely.   Lord  Denman  dissented,  considering  imprisonment  to  be  any 
restraint  of  a  jrari's  person  by  force. 

'Majority  of  the  court  held,  that  there  was  not  a  substantial  total 
deprivation  of  liberty. 

SRE  Innes  v.  I'.'ylie,  ante. 

In  supposed  case  of  a  person,  shut  up  in  a  room  with  all  egress  shut 
off,  except  that  by  lifting  latch  of  a  window,  the  same  will  open.   SEE 
"Breaking"  in  burglary,  2  Bishop's  New  Criminal  Law,  Sec.  19,  as  to  wheth- 
er it  would  be  right  to  lift  latch. 

As  to  false  imprisonment,  see  IS  New  -c.  -.aiss  hep.,  ?5>1 , 

As  to  false  imprisonment  definition,  see  Bishop's  Non-Contract  Law, 
Sec.  ?06,  see  Bigelcw,  ^:ie.  of  Torts,  A   !<d.,  p.  137. 

The  word  "false"  is  not  used  with  respect  to  the  merits  of  the 
charge  against  the  prisoner,  but  it  relates  to  the  validity  and  legality 
of  the  authority  under  which  the  imprisonment  is  attempted  to  be  justi- 
fied.  Bishop,  on  Non-Contract  Law,  Sec.  ?20,  in  speaking  of  malicious 
prosecution,  says,  Lhat  malicious  prosecution  consists  of  the  unjustifia- 
ble use  of  the  processes  of  the  law,  while  false  imprisonm,ent  is  an  act 
done  in  violation  of  those  processes. 

S^'^'  celebrated  sentence  in  Note  to  1  Saunders  Hep.  345  b':  "'/Wherever 
any  act  injures  another's  right,  and  would  be  evidence  in  the  future  in 
favor  of  the  wrongdoer,  an  action  may  be  maintained  for  an  invasion  of  the 
right  without  proof  of  any  specific  injury."   S??  remarks  of  Lord  Coler- 
idge, in  4  E.D.5  B.,.  640 

If  there  are  other  means  of  egress  from  prison  it  is  not  imprison- 
ment, if  those  means  are  reasonably  safe. 

ELIZABETH  A.  FAYSON  v.  PERRY  R.  MACOMBER,  p.  40,  Mass.,  1S61. 

By  representations  and  threats  of  prosecution,'  and  by  paying  her  ex- 
penses,. Deft,  induced  Plff.  to  go  away  during  a  certain  divorce  suit;  but 


11. 

she  became  satisfied  Deft,  was  deceiving  her  and  so  returned  and  testi- 
fied in  the  suit.   In  this  action  for  abduction  and  false  imprisonment,' 
it  was  HELD,  that  as  Deft,  did  not  use  force  or  threats  of  force,  and  as 
Plff.  yielded  voluntarily  to  his  misrepresentations,  there  was  no  ground 
of  action  for  false  imprisonment. 

There  was  no  force  or  threat  of  force,  so  there  was  no  false  impris- 
onment.  I'he  person  was  not  caused  to  depart  against  her  will. 

Definite  limits  are  necessary  in  every  direction  in  order  to  consti- 
tute imprisonment,. 

SEE  13  New  So.  Wales  3ases  of  Law  252,  case  of  sheriff  set  adrift  on 
$  steamer. 

There  must  be  a  complete  restraint  of  liberty;  it  is  not  false  im- 
prisonment if  one  door  to  a  room  is  closed  if  another  is  left  open.   But 
if .3  person  has  certain  limits  set  for  him  beyond  which  he  cannot  go,  it 
is  false  imprisonment,  even  if  he  has  considerable  freedom  of  movement 
within  these  limits.   A  man  is  not  imprisoned  so  long  as  there  is  s  means 
of  egress,  provided  (1st)  that  it  does  remain  open  in  the  sense  of  being 
visible  or  apparent  or  readily  discoverable  by  an  average  man;  (2nd)  that 
this  means  of  egress  can  be  used  without  applying  physical  force  to  this 
means  or  place  of  confinement,  and  (3rd)  is  such  that  an  ordinary  man  can 
use  it  without  serious  peril  of  lif^  or  limb,  and  with  reasonable  hope  of 
success. 

Bishop,  Non-C!ontract  Law,  Sec.  267,  says  in  Bird  v.  Jones,  no  im- 
prisonment, but  an  actionable  wrong,  however  not  the  wrong  to  which  law 
applies  term,  false  imprisonment. 

Bishop,  Non-Contract  Law,  Sec.  206.   Imprisonment  is  any  unlawful 
physical  restraint  by  one  of  another's  liberties,  whether  in  a  prison  or 
elsewhere,  in  a  place  stationary  or  moving,  under  claim  of  authority  or 
not,  by  bolt  and  bars,  by  threat  overpowering  the  will  or  by  any  other 
means. 

Two  questions,  (1)  how  may  restraint  be  imposed?   (?)  Is  tctui;!  con- 
tact necessary  or  not?   i^ict.   Restraint  may  be  imposed  either  by  use  of 
physical  force,  or  submission  to  such  threat,  in  case  there  is  a  reasona- 
ble apprehension  that  force  will  be  used  at  once  in  case  submission  is 
not  immediate. 

How  great  must  the  restraint  be?   J/ust  be  unlawful  restraint,  of  mo- 
tion in  every  direction  within  some  limit  wide  or  narrow,  defined  by  the 
will  of  another. 

H.&  K.G.C.  L.F.  458. 

Bigelow,  4th  Ed.  Sec.  1?.7.   Breaking  into  a  place  requires  the  sep- 
aration of  the  walls;  as,  opening  a  window  or  s  door,  ~* 

A  guilty  man  arrested,  on  a  void  warrant  is  falsely  imprisoned. 
An  innocent  man  arrested  on  a  proper  warrant,  is  not  falsely  imprisoned. 
He  may  have  an  action  for  malicious  prosecution. 

Valioious  prosecution  consists  of  an  unjustifiable  employment  of  the 
processes  of  the  law.   False  imprisonment  is  an  act.  done  in  violation  cl] 
those  processes. 


12. 

?,5  Atiantic  Heporter  694. 

ae  Nebraska  898. 

Section  4,  Trespass  upon  heal  Property,  Smith  v.  'r'tone,  p.  4?,, 
Kine's  feencih,  1547. 

Trespas's.  Plea.   lcil.  was  carried  forcibly  by  Gthe[*s  on  land  oi' 
Piff.-   Plff.Xdenmrred.   HELD,  that  it  was  trespass  of  parties  who  car- 
ried him,'  not  trespass  of  deft,. 

Are  the  dodtrines  of  the  common  law  concerning  trespass  on  real 
property  iounded\in  the  nature  of  things,  or  are  they  mere  accidents  of 
legal  history? 

Keep  this  question  in  mind. 

Pickering  v.  Ruid,  p.  42,  does  not  decide  anything. 

RLLIS  V.  THR  LOFTUS  IRON  COMPANY,  p.  44.  Common  Pleas,.  1S74. 

Plff.  and  Deft,  occupied  adjacent  pieces  of  land,  between  which  /.'as  ?. 
wire  fence.   Plff.  used  his  land  for  pasturing  his  horses.   One  day 
Deft,  turned  a  stallion  into  its  land.   It  had  done  so  before,  but  had 
always  watched  him.   This  time  it  did  not.   One  of  Plff's  mares  was 
close  to  fence,'  and  deft's  stallion  kicked  and  bit  her.   .'^hereupon  Plff. 
brought  this  action  of  trespass.   HFjLD,-  that  as  some  portion  of  deft's 
horse  must  have  been  over  the  boundary,  it  was  a  trespass,  no  matter  how 
small  the  portion.   Not  necessary  to  prove  negligence  in  case  of  man's 
animals,  any  more  than  in  case  of  man  himself. 

Touching  a  horse  on  a  man's  land  is  the  same  as  touching  the  land  it- 
self. 

It  has  b'^en  aouuma  /tniincr  il  is  -j.   Lrespass  to  pass  over  land  with- 
out touching  the  soil,  as  one  may  in  a  balloon,  or  to  cause  a  material  ob- 
ject, as  shot  fired  from  a  gun,  to  pass  over  it.   Lord  'illenborough 
thought  it  was  not  in  itself  a  trespass  to  interfere  with  the  column  of 
air  superincumbent  upon  the  close,  and  that  the  remedy  would  be  an  action 
on  the  case  for  an  actual  damage;  though  he  had  no  difficulty  in  holding 
that  a  man  is  a  trespasser  who  fires  g  gun  on  his  own  land  so  that  the  . 
shot  falls  on  his  neighbor's  land.     'i   Camp.  ?19,  221).       ^'ifty  years 
later  Lord  Blackburn  inclined  to  think  differently,  and  his  opinion  seems 
to  be  the  better. 

COUCHfijRTY  V.  STKPP..  0.  47.  North  Carolina,  1S35. 

Trespass  quare  olausun;  f regit.   Deft,  entered  on  unenclosed  land  of 
Plff.  with  other  men  and  surveyed  part  of  it.,  without  marking  trees  or 
cutting  bushes. 

Lower  court  held  no  trespass.  In  the  upper  court  it  was  HELD,  that 
while  amount  of  damages  may  depend  on  the  acts  done  on  the  land.-  it  is  an 
elementary  principle  that,  mere  unauthorized  entry  constitutes  trespass. 

There  is  no  more  right  to  go  on  unenclosed  land  than  on  enclosed. 

Many  states  have  statutes,  providing  that.,  in  cases  of  trespass, 
where  no  substantial  damages  are  awarded  the  Plff.,  the  costs  of  suit 
should  be  borne  by  the  Plff.,,  except  in  cases  where  a  title  is  in  dispute 

Sf-'CTION  5..  Trespass  upon  Personal  Property,  p.  49,,  Marlo;v  v  *eekes 
Common  Pleas,  1744. 


13. 

Trespass  for  assauiling,  beating  and  wounding  Piff's  mare.   Verdict 
IcJr  Flff.   Celt,  moved  in  arrest  of  .iudgment.   HELD,  that  while  assault 
upon  a- dead  thing,  as  a  ship,  will  not  lie,  for  injury  to  a  beast  a  writ 
ill  trespass  vi  et  armis  lies.   Judgment  affirmed. 

There  can  be  trespass  on  chattels  where  there  is  asportation,  cr  an 
exercise  of  authority  over  them  to  the  exclusion  of  the  owner. 

Clerk  and  Lindsell  (154)  and  Pollock  both  think  that  unpermitted  con- 
tact with  a  chattel,  without  injury  or  asportation,-  may  sometimes  be  al- 
lowed t6  maintain  an  action. 

M1LL\K  V.  BAKP.R,  p.  50,- Mass. ,  1S40. 

Trespass  de  bonis  asportatis,  brought  against  sheriff  because  one  of 
his  deputies^  converted  soire  shrubs  and  plants  of  Plff .  to  his  own  use. 
Verdict  for  Mff .  in  lower  court;  HELO.^  that  if  s  party  exercise  authori- 
ty over  goods -against  the  will,  and  to  the  exclusion  of  the  owner  by  an 
unlawful  interiseddling,  it  is  sufficient  to  maintain  trespass,-  even  if 
there  be  no  forcible  taking.   Such  an  act  is  illegal  attachment  of  prop- 
erty by  sheriff. 

Here  the  owner  was  dispossessed  without  manual  touching,  taking  or 
removal.   This  is  the  point  of  the  case  that  neither  removal  nor  touch- 
ing is  necessary  to  maintain  trespass.   Cispcssession  is  enough. 

"He  who  interferes  with  my  goods,  and  without  delivery  by  me,  and 
without  my  consent,  undertakes  to  dispose  of  them  as  having  the  property, 
general  or  special,  does  it  at  his  peril  to  answer  to  me  the  value  in  tre^ 
pass  or  in  trover."  p.  ?0. 

COLL  V.  n^a^n,   p.  oc,   ..ass.,  ISli,  ^'^^  ""''*'^ 
Trespass  vi  et  armis.-   Deft,  after  cleaning  a  gun  went  to  door  of 
shop,  one  rod  from  street  and  fired  it  for  the  purpose  of  drying  it. 
Piff's  horse,  in  cliaise,  was  fastened  to  fence  across  street.   F'rightene: 
he  broke  away,  ran,  and  smashed  the  chaise.   HELD,-  that  it  was  a  questiCi 
of  some  difficulty  whether  trespass  or  trespass  on  the  case  lies  in  this 
matter,  whether  it  was  immediate  or  consequential  injury.   Intention  of 
Deft,  is  immaterial.   Liability  in  this  form  of  action  depends  on  whethei 
horse  was  in  plain  sight,  or  Deft,  had  noticed  it,  and  distance  was  such 
there  might  be  reasonable  apprehension  of  frightening  horse.   If  so,  in- 
jury is  immediate  and  Deft,  liable  in  this  action. 

BRUCH  V.  CARTER,  p.  53,  New  Jersey.  1S67. 

Trespass.   Piff's  horse  was  tied  in  the  highway.   Deft,  untied  it 
and  fastened  it  to  another  post  ten  yards  away  whereby  an  accident  hap- 
pened which  resulted  in  death  of  horse.   HELD,'  that  this  was  a  trespass. 
The  Plfi's  horse  was  fastened  to  a  post  in  the  highway  to  which  Flff.  had 
as  good  a  right  as  anybody,  and  Deft,  had  no  right  to  move  it. 

In  actions  of  tort,-  the  Plff.  may  recover,- even  though  he  do  not    '^" 
prove  the  entire  cause  of  action  as  laid  in  the  declaration,  if  U--  aver- 
ments are  of  such  a  kind  that  they  may  be  divided. 

Here  there  was  an  asportation,  for  which  the  law  will  afford  damages 
even  if  no  actual  injury  is  proved. 


'f  <F 


Section  3,  H'xcusabls  Trespasses, 

riAVKH  V.  A'AHD,  p.  56.  King's  Bench.  1516. 

Trespass,  assault  ana  battery.   Ueft.  pleaaea  Lnai  ne  ana  Ir'ili. 
were  soldiers.   vThat  their  company  was  skirmishing  with  another,  their 
ii.uskets  being  loaded  with  powder,  and  while  they  were  so  dsing,'  Deft,  in 
discharsing  his  piece,  accidentally  wounded  Fiff.   Plff.  demurred. 
HFXD,'  that  though,  felony  must  be  done  animo  felonico,  it  is  not  so  with 
trespass.   No  man  shall  be  excused  of  a  trespass  unless  it  be  dons  ut- 
terly without  his  fault,  as  if  Flff.  ran  across  piece  when  it  was  dis- 
charging.  Judgment  for  Plff. 

This  case  certainly  decides  that  Ceft's  plea  was  insufficient.   It 
is  not  sufficient  to  excuse  a  prima  facie  trespass,  to  plead  that  there 
was  no  intention  to  harm. 

There  are  two  theories  as  to  the  inaking  of  the  plea  sufficient;  one, 
that  Deft.,  should  have  denied  negligence,'  the  other  t,hat  Deft:  should 
have  pleaded  that  the  injury  was  inevitable  so  far  as  Deft,  was  concerned. 
But  Prof.  Smith  thinks  it  profitless  to  try  to  discover  what  was  the  earlv 
limitation  of  a  trespass.   Also  there  is  a  theory  that  this  case  turns  or; 
a  question  of  pleading. 

The  case  is  often  quoted  but  decides  nothing  of  importance. 

DICKENSON  V.  WATSON,  p.  57,  King's  Bench,  158?. 

Assault,  battery  and  wounding  by  discharge  of  gun.   Deft,  pleaded 
that  it  was  an  accident,  that  while  he  was  discharging  gun  Plff.  crossed 
his  way.   Plff.  demurred.   HELD,  that  in  trespass  Deft,  shall  not  be  ex- 
cused without  unavoidable  necessity,  which  is  not  shown  here. 

Here  the  court  says,'  it  is  not  enoutih  to  plead  "1  took  ordinary  [ 
care."  One  must  say,  "I  took  the  greatest  possible  care,  yet  the  acci-  I 
dent  was  inevitable." 

The  plea  should  have  stated  this  specially. 

NOT^,  to  Weaver  v.  ^'.'ard. 

Intention  to  harm  is  not  necessary  for  trespass.   The  Deft,  should 
have  denied  that  he  was  negligent,  or  as  one  ssys,  he  should  have  alleged 
the  harm  as  inevitable.   Previously  to  their  case,  there  was  no  defini- 
tion of  a  tort  under  such  circumstances.   The  truth  is,  about  all  the 
oases  of  this  period  were  decided  on  points  of  pleading. 

JAMRS  V.  CAMPBELL,  p,  58,.  Nisi  Prius,  138?. 

Assault  and  battery.   Deft,  fighting  with  a  third  party,-  struck 
Plff.   HELD,  that  if  deft,  struck  Plff.  he  is  guilty  of  assault  and  bat- 
tery, whether  it  was  done  intentionally  or  not.   Intention  is  material 
only  in  considering  amount  of  damage. 

Flff.  might  be  held  here  on  ground  that  act  was  unlawful  that  he  was 
engaged  in.   Three  cases  of  battery.   1st,  intended;  2nd,,  negligent, 
Srd,  where  the  act  the  man  was  doing  was  itself  unlawful. 

Here  the  accident  would  not  have  happened  if  Deft,  had  ncL  been  doim 
an  unlawful  act.   Cooley  St.ar  p.  15-^   Pollock  180,- 2d  Ed.  z. 

Carefulness  is  not  a  defense,  if  the  act  Deft;,  is  doing  is  unlawful. 


15. 
in  this  case  Defl,  was  held  for  negligence,  but  aould  have  been  held  on 
the  ground  that  the  whole  act  was  unlawful. 

STANLEY  V.  POWELL,  p.  58..  Queen's  Bench  Division.  1B90. 

Plff.  and>,''eft.  were  in  a  shooting  party.   Latter  fired  at  a  bird, 
a  shot  glanced  froiri  a  tree  and  wounded  Plff.   Jury  found  no  negligence. 
HELD,' that  in"  orSer  to  constitute  a  defense  in  case  of  trespass,  it  is 
not  necessary  to  ishow  that  the  act  was  inevitable.   It  is  merely  necessa- 
ry to  show  that  De^t.  was  entirely  without  negligence.   Judgment  for 
Deft.. 

Accidental  injury  neither  negligent  nor  wilful  is  not  an  actionable 
trespass. 

The  .jury  found  that  there  was  no  negligence  on  the  part  of  the  Deft. 

It  is  an  open  question  m  the  United  States  as  to  whether  the  use  of 
firearms  is  extra  hazardous. 

This  is  a  good  case  for  reviewing  the  old  authorities. 

Bullock  V.  Babcock.  p.  64.  New  York,  1B?9. 

Trespass,  assault  and  battery.   Parties  were  small  boys.   One  had  a 
bow  and  arrow,  said  to  Plff.,  "I  will  shoot  you."   Latter  hid  behind 
something.   Plff.  shot  at  a  basket.  Deft,  raised  his  head  at  that  moment 
and  was  bsdly  wounded.   HSLD,  that  Deft,  was  liable,  injury  not  resulting, 
fron-  unavoidable  accident,  even  though  Deft,  was  very  young.   An  infant 
is  liable  for  torts. 

BROAN  v.  KENDALL,  p.  67.  Mass.,  1850. 

Trespass,  assault  and  battery.   Two  dogs,  belonging  to  Plff.  and 
Deft,  were  fighting  in  the  presence  of  their  masters.   Deft,  took  a 
stick  and  beat  the  dogs  to  separate  them.   Dogs  moved  toward  Plff.,  Deft. 
keeping  on  beating  them  with  his  back  toward  Plff.,  finally  in  lifting  his 
stick,  hit  Plff.  in  the  eye.   HPLD,  that  if  Deft,  in  doing  a  lawful  act, 
unintentionally  wounded  Flff.,  then  Plff.  must  prove  want  of  due  care,  in 
order  to  recover. 

:/.ost  important  cf  all  ijiese  case^.   :lK   A'alker's  Am.  Lav.'  Sec.  208; 
3  New  Hampshire  365.   Ttiis  case  is  now  regarded  as  law  everywhere.   Tb; 
judge's  charge,  final  rulings,  etc..  should  be  learned.   The  act  of 
striking  with  the  stick  was  intentional,  but  ihe  act  of  hitting  the  Plff. 
in  the  eye  was  not  intentional,  it  was  an  accident.   The  parting  of  the 
dogs  was  a  lawful  act  and  in  the  case  of  a  lawful  act  a  man  is  liable  onlv 
for  ordinary  care,  that  is.^  due  care  considering  the  circumstances  any 
surroundings. 

BASELY  v.  3LARKSCi\.  p.  7c,   rang's  Bench,  1661. 

Trespass  for  breaking  close  and  cutting  grass  and  carrying  il  away. 
Deft,  pleads  that  he  was  mowing  his  own  adjacent  land  and  involuntarily 
and  by  mistake  cut  some  grass  on  land  of  Plff.   Flff.  demurred.   HELD, 
that  Deft,  is  liable.   For  act  was  voluntary  and  intention  and  knowledge 
cannot  be  considered  for  they  cannoi  be  knovm. 

At  that  time  a  tender  was  of  no  avail  as  k   defence;  it  is  of  avail 
now.   The  case  was  decided  as  though  no  tender  had  been  made.   Only  de- 


16. 
fence  here  was  that  of  a  mistake  of  title  in  land  which  could  not  avail 
Peft.   A  non-ne^li^ent  mistake  as  to  the  title  of  the  property  is  no  de- 
fence to  an  action  of  tort.   Applies  to  tangible  property.   Law  goes 
farther  to  protect  real  than  personal  property. 

The  physical  act  of  entry  was  voluntary.   Glutting  Flff'i  ,-iaos  wao  s 
mistake.   Question  is,  was  there  negligence.  Intent  can  be  judged  only 
by  action.   "K'ltention  not  traversable"  aoes  not  hold  today.   Questions 
of  intent  are  tried  every  day.   'i^Jase  comes  to  this:  Mistake  as  to  owner- 
ship of  'property  will  not  excuse  trespass  on  the  property.   Holmes,  153, 
97-98,  gives  reason  for  this. 

HI3GINS0N  V.  YORK,  p.  72,  Wass.  1S02. 
Trespass  for  breaking  and  entering  close  of  Deft,  and  carrying  away 
wood.  "Deft,  master  of  a  vessel,  was  employed  by  one  Kenniston  to  take  s 
cargo  of  wood  from  a  certain  island.   Deft,  took  the  wood,  sold  it,  and 
paid  K.   K.  had  bought  the  wood  from  ens  Phinney,  and  Deft,  was  ignorant 
of  the  fact  that  latter  had  cut  it  without  any  right,  on  land  belonging  t. 
Plff.   HfllLQ,^  that.  Deft,  was  clearly  a  trespasser  in  going,  without  risht, 
on  land  of  Plff.   His  mistake  was  no  answer  to  Plff,,  no  reason  why  they 
should  lose  their  chattels.   He  is  clearly  answerable  as  a  trespasser, 
for  the  value  of  the  wood. 

Adds  to  Basely  v.  Olarkson,  "Deft,  is  liable,  even  though  he  receive: 
no  benefit,,  and  even  if  there  are  two  wrong  doers  before  him." 

Deft,  did  not  get  the  benefit  nor  was  he  the  wrong  doer  primarily. 
These  are  the  two  distinctions  between  this  case  and  Basely  v.  Olarkson. 
The  principal  cannot  confer  any  more  right  on  his  agent  than  he  has  him- 
self.  The  agent  might,  have  an  action  here  against  his  principal. 

Supposed  cases  -  four  carriages  badly  damaged. 

Accident.  (1)  struck  by  lightning.   (2)  collision  with  another  ncv 
preventable  by  ordinary  care  on  the  part,  of  either.   (3)  collision  not 
intended,  but  could  have  been  prevented  by  ordinary  care  on  part  of  other 
driver.   (4)  carriage  run  into  by  another  racing  illegally  on  the  high- 
way, but  driving  with  reasonable  care. 

'A-^:  1.  No  human  liability;  2.  Done  by  human  being  and  no  human 
liability,  being  unavoidable;   ■ .   as  unintentional,  but  not  using  due 
care;  was  liable  for  act.   ) hat  it  was  unintentional  is  no  defence,  if  it 
could  have  been  prevented  by  the  use  of  due  care;  4.  In  this  case,  was 
not  negligent,  but  act  was  illegal  in  itself.   32  Conn.  85.   (1st)  All 
acts  which  are  inevitable  or  unavoidable  because  brought,  about  by  the  ope 
at ion  of  nature  alone.   (2)  Those  resulting  wholly  from  human  agency, 
but  which  were  unavoidable  under  the  circumstances,  by  the  exercise  of  the 
care  required  for  such.   (8)  Those  resulting  wholly  or  in  part  from  hu- 
man acts,  but  which  were  unavoidable  by  using  the  degree  of  care,  require., 
by  law,  in  the  performance-  of  an  act  lawful  in  itself.   (4)  Those  that 
could  be  avoided  by  refraining  from  attempting  to  perform  an  act  unlawful 
in  itself,-  even  if  performed  with  care. 

An  act  that,  was  unintentionsl,  and  without  negligence,  and  despite 
due  care,'  will  ordinarily  excuse  a  trespass.   Some  authorities  require 


17. 

extraordinary  care  in  some  few  cases. 

STEFHF.N'S  Digest,  of  Criminal  Law,  Art.  210.   "An  effect  is  said  to 
be  accidental  when  the  act  by  which  it  is  caused  is  lawful  per  se  and  is 
not  done  with  intention  of  causing  it  and  when  its  occurrence  as  a  conse- 
quence of  such  acts  is  not  so  probable  that  a  person  of  ordinary  prudence 
ought  under  the  circumstances  in  which  it  is  done,  to  take  reasonable  pre- 
cautions against  it." 

rf  p  n  p  p  Q  I 

Holmes,  The  Conimon  Law,  p.  94,  says,  "Tne  principle  of  our  law  is 
t^at  loss  from  accident  nf!ust  lie  where  it  falls,  and  it  is  not  affected 
vih^n   a  human  being  is  the  innocent  agent  of  misfortune,  but  relatively  to 
a  g\ven  human  being  anything  is  accident  which  he  could  not  fairly  have 
been\expected  to  contemplate  as  possible  (probable)  and  therefore  to  svoic 

In  old  times,  it  was  enough  that  the  act  happened  (see  Smith  on 
Forts  'r.  357),   The  law  regarded  not  so  much  the  intent  as  the  damage 
done.  '.The  rule  was  stated  thus,  he  that  is  damaged  ought  to  be  recom- 
pensed.  Holmes  Common  Law  p.  93,  says  of  this  rule  that  it  would  be  more 
sensible  to  amend  the  Constitution  so  that  the  whole  state  should  pay  the 
damage  than  to  have  one  innocent  Deft,  pay  it.   If  both  parties  are  inno- 
cent, there  is  no  reason  why  the  hardship  should  be  transferred  from  one 
innocent  party  to  another  equally  Innocent. 

3KCTI0N  VI.  (continued), 
(b)  Leave  and  License.  L.att^r-  v.  Braddel ,  A  if  e,  and  'jnclher,  c.77, 
CoMion  Fleas,  1S30. 

Action  for  assault.   Judge  withdrew  case  from  jury  as  regards  the 
Braddels,  on  the  ground  of  no  evidence  of  non-consent  of  Plff.   Plff . 
was  servant  of  Ceft.   Latter  arrived  home  after  an  absence  and  was  in- 
formed that  Plff.  was  in  a  family  way.   Plff.  denied  it.   Coctor  was 
summ^oned,  and  at  mistress'  orders  (without  any  threats)  Plff.  submitted 
though  with  some  protest,  to  examination  by  doctor,  who  decided  she  was 
not  in  a  family  way.   Verdict  for  Deft.,  the  doctor.   Rule  obtained 
calling  on  Deft,  to  show  cause  why  verdict  should  not  be  set,  aside  and  nev. 
trial  ordered,  on  ground  of  wrongful  withdrawal  of  case  from  the  jury  by 
the  judge,   HELD,  that  plff.  was  properly  non-suited,   No  force,  or 
threats  of  force  were  used,  nor  was  Plff.  put  in  fear.   She  cannot  plead 
non-consent,  because  it  was  perfectly  in  her  power  not  to  obey,  and  thougr 
it  may  have  been  against  her  will,  she  nevertheless  in  effect  gave  her 
mistress  leave  to  have  her  examined.   Rule  discharged. 

Cf  course  the  general  rule  is  that  consent  is  a  defence,-  but  there 
are  exceptions.  In  common  speech  the  girl  did  net  consent.  She  proba- 
bly yielded  in  fear  cf  discharge,  also  she  probably  thought  the  people  har 
a  legal  right  to  examine  her.  But  this  does  not  vitiate  her  actual  con- 
sent. So  long  as  she  did  not  submit  because  of  violence  or  from  reason- 
able fear  cf  violence,  her  consent  was  valid  and  excused  the  assault. 

Consent  procured  by  force  or  intimidation  would  not,  be  consent  at, 
all. 

HESARTY  V.  3HJNF,,  p.  90, ■  Ireland,  1S7S. 

Action  by  female  Plff.  against  male  Ceft.  for  assaulting  her  and  in- 
fecting her  with  venereal  disease.   Ii  appeared  from  evidence  that  illic- 


18. 
ii  intercourse  had  gone  on  between  Plff.  and  Deft,  for  two  years,  during 
y.'hibh  time  Flff.  contracted  the  disease  from  i^feft.   Judge  charged  jury 
that\fraud  of  Ceft.  in  concealing  his  condition  vitiated  consent  of  Plff. 
Verdist  for  Plff.   In  upper  court  is  HELD, /that  judge's  charge  was  erro- 
neous.  Dscsit  by  one  of  the  parties  cannot  transforn,  a  long  permitted 
relation  into  assault  on  his  part.   Furttier,  in  order  to  maintain  action 
for  fraud,  duty  to  disclose  must  be  sho^6.   In  connection  with  an  iiriinor- 
al  act  no  such  duty  can  be  shown.   ''cnft,?;  dr.  net  provide  remedies  for 
ccnseauences  of  in'mcral  sets. 

oaneral.ruls  is  iivd   fraud  vitiates  consent.    vy  nci  csrer  z2- 
cause  it,  is  consent  to  an  iirmoral  acjL. 

L.R.,  3  Q.B.  ■110,  case  of  physician  deluding  a  young  girl. 

A  duty  of  disclosure  does  not  arise  cut  of  an  agreen;ent  to  do  an  il- 
legal act.   Hence  a  person  is  not  bound  to  reveal  his  condition  as  to 
disease.   8  Harrington  and  Payne. 

H.A.VILTON  V.  LCWAX,  p.  8?,  New  York,  1558. 

Action  for  seduction.   Motion  by  Deft,  to  be  discharged  from  arrest. 
Ground  on  which  Flff.  claifred  to  sustain  the  arrest  was  for  the  seduction, 
alleging  that  she  had  been  defrauded  by  false  promise  of  rrarriage  on  part 
of  Deft.   H^^'LO,  that  a  promise  to  do  something  in  the  future  is  never 
sufficient  to  maintain  an  action  of  deceit.   'further,  as  the  person  se- 
duced assents,  she  can  never  iraintain  an  action  for  the  seduction.   Ac- 
lion  must  be  brought  by  a  third  party  who  has  been  deprived  of  her  ser- 
vices.  Judgment  for  Deft. 

Plff.  could  not  bring  orcacr.  oi  prc;i.i5i  ss  :Jeit..  was  unaer  21   years; 
were  he  over  2],   court  would  consider  seduction  in  aggravation  of  breach 
of  promise,  but  will  not  allow  action  for  seduction.   Jhs  person  entitled 
to  her  service,  could  brinp  ?.ctior  for  loss  of  her  service. 

(jm^/i      -^ITZGFJRALD  v.  CAVIi\.  p.  84,  t.'.ass.,  1872. 

Assault.   Plff.  testified  that  Deft.  seii^eLi  bin:  vy   Lne  issticiss 
and  squeezed  them  severely.   Deft,  testified  that  iL  was  done,  without 
any  malice  or  anger,  vchils  they  were  fooling  with  each  other.   Judge 
charged  that  Deft,  would  not  be  liable  if  there  was  no  malice  or  intent, 
and  if  parties  were  playing  together  lawfully  by  mutual  consent,  and  if 
the  act  dons  was  no  other  than  Deft,  might  have  expected;  that  whether  or 
not  the  force  used  was  reasonable  is  to  be  determined,  not  from,  results, 
but.  from  force  used  at  the  tim.e  and  the  nature  of  the  act; that  if  Deft, 
intended  to  do  the  act  and  that  act  was  unlawful  and  unjustifiable  and 
caused  bodily  harm,  then  Plff.  could  recover.   Verdict  for  Plff.   Excep- 
tions.  HIiLD,  that  the  rulings  were  sufficiently  favorable  to  Deft. 

(143  Mass.  578).'   Donsent  means  outwardly  manifested  consent,  not 
secret  hope  to  get  damiage.   V;hen  will  literal  consent  not  be  sufficient? 
When  caused  by  force  or  fear  of  violence'.   Fear  must  be  reasonable  and 
of  immediate  force  which  it  would  be  foolish  to  resist.   ^raud,  illegal- 
iLy,  etc.,  are  considered  in  these  cases. 

Plff.  need  nut  have  consented  to  the  specific  thing,  as  to  the  injury 


mV) 


yi\AA 


^yn/iA 


19. 
happenine  in  a  toot  ball  game;  but  his  consent  implied  from  entet-int?.  the 
game,  is  a  valid  defence  to  ail  acts  not  done  maliciously  or  unfaic-l.v  in 
violation  of  the  rules. 

.VARJ'tMN  V.  3<aiMD&LL,  p.  85.  ivc/«  jcl-^^.v,  189:'-. 

Deft,  removed  reins  from  Plff's  horse  which  was  tied  in  the  street,  so 
L^at  Flff .'s  clerk  could  not  drive  horse  horrie.   Deft,  refused  to  give 
tiii^m  up  when  so  requested.   Deft,  claimed  he  did  it  as  a  joke,  and  upon 
his' giving  up  the  reins  the  judge  disndssed  the  case.   '[rror  assigned. 
WiiS,   that  it  was  a  question  for  the  jury  whether  from  past  relations  b:e- 
tween'ths  parties  deft,  had  a  right  to  believe  thai  plif.  would  take  it 
as  a  joke.   Judge  had  no  right  to  decide  this.   Maxim,  "de  minimis  non 
curat  lex"  does  not  apply,  for  trespass  on  property  is  actionable  however 
small  the  damage.   Judgment  reversed. 

"^'here  is  great  doubt  as  to  hcv;  far  i  prijiuil  joke  Cii,  uc  jci-cnjed 
on  i-round  of  past  relations  between  the  parties. 

fH'?STATf:  V.  BICK  and  OIH^HS,  p.  86.  -c. Carolina.  1833. 

Indictment  for  assault  and  battery.   A  person  i'.'ho  had  lost  leather 
got  Beck  and  others  to  aid  him  in  the  search.   fhey  found  the  leather  on 
the  premises  of  one  Anderson,  whom  they  immediately  took  into  custody. 
Some  one  asked  hiir.  if  he  would  not  rather  be  whipped  than  go  to  jail.  ;  He 
said  he  would,  and  requested  Beck  to  v.'hip  him.   Beck  hesitated,  but.  at, 
earnest  request  of  Anderson,  finally  hit  latter  a  few  blows  with  a  switcl . 
He  was  found  guilty  In  lower  court  and  moved  for  a  new  trial.   HILD,  that 
where  there  is  no  intent  to  injure  and  no  negligence,  battery  cannot  be 
imputed.   Act  was  done  at  earnest  request  of  Anderson  and  against  will  oi 
deft.   New  trial  granted. 

The  decision  can  be  defended  if  st  all,  only  on  the  slight  degree  c. 
the  offence.  Had  the  deft,  killed  /Anderson  at  request,  deft,  •.vculd  hsvc- 
been  liable  for  murder,  just  as  if  no  consent  were  obtained. 

Absence  of  lawful  consent  is  an  element  to  an  assault  and  battery. 
Consent  must  be  manifested,  not  simply  taken  for  granted. 

143  Mass.  573. 

There  is  no  effectual  consent  if  plff's  will  is  overcome  by  force, 
fear  of  violence,  or  reasonable  apprehension  of  force  which  it  would  be 
dangerous  and  useless  to  resist. 

In  a  game,  person  consents  to  take  chances  oi  injury  li  acne  fairly 
and  in  accordance  with  the  rules  of  the  game.   Tf  the  game  is  a  simple 
kicking  match,  there  can  be  no  consent,  as  that  is  unlawful,  and  there  is 
almost  3  certainty  of  serious  bciilv  h=^rrr.   In  football,  injury  i?  cct  p 
necessary  nor  presumable  result. 

A  game  is  illegal  (1)  if  it  is  carried  on  in  anger,  (2)  if, 
though  noL  carried  on  in  anger,  yet  there  is  intent  to  do  appreciable  bod- 
ily harm;  (3)  if,-  though  no  anger  and  no  special  intent  to  harm  exists, 
yet  from  the  nature  of  the  contest  there  is  a  probability  that  apprecia- 
ble bodily  harm  will  frequently  result. 

Voluntary  consent  will  excuse  trespass  when  the  trespasser  shows  no 
hostility,  malice,  or  when  act  is  noL  per  se  unlawful;  then  each  party 


20. 
loses  his  defence. 

Vr.S   Mass.  155  (An  analogous  case)  is  not  cerfectly  satisfactory. 

B!^;LL  V.  HANSLI-'Y.  p.  $8..  Mo.  Carolina.  3355. 

Trespass,  assault  apd  battery./  I^lvidence  snowed  a  mutual  aifray  and 
fighting  by  consent.   (/(il/j,  that  /6s  the  fi^htin^  itself  was  unlawful, 
consent  of  parties  is  no  bar  to  an  action.   ^iither  can  maintain  an  action 
for  assault  and  battery,   Judgn-^t  for  plff. 

Bell  V.  HansleyAs  distinguishable  fron;  Han.ilton  v.  Loiiiax  where  con- 
sent barredthe  actigin.   In  Belj  v.  Hansley  the  fight  would  endanger  life 
and  was  a  breach  of'  the  peace.   Also  seduction  was  a  private  wrong  and 
did  not  generally  work  bodily  injury.   lighting  is  iTtcre  public  than  se- 
duction; this  has  had  had  great  weight.   Also,  fighting  was  in  early 
times  a  common  law  crinie  but  adultery  was  not,  being  only  an  ecclesias- 
tical offence,  unless  open  and  notorious. 

Bishop,  Non-Contract  Law  Sec.  193,  t.hinks  L.nis  aecision  y;rcng,  snd 
that  a  civil  action  should  not  be  allowed.   The  weight  of  authority  how- 
■■^ver   is  with  Bell  v.  Hansley, 

Consent  may  be  inferred  by  overt,  act,  as  well  as  by  parol.   xi;:iL 
consent.   -''!'  I'lS  Mass.  573.   Consent,  must  be  ir^anifest.   Fraud  vitiates 
consent.   '^crce  vitiates  consent.   In  games,  a  man  consents  to  taking 
ordinary  risks  and  chances  of  the  garre,  played  as  a  sport,  according  to 
rules  of  the  game.   In  an  illegal  game  this  consent  is  vitiated.   PoUoc 
on  Torts  end  Ed.  145.   Boxing,  with  oroperly  padded  gloves  is  lawful; 
with  fists,  unlawful,   '^'irst  is  lawful  because  no  danger  is  .likely  to 

^'"^^^^ 

(c)   Defence  of  '^slf  and  Closely  Allied  Persons,  p.   .        ^ 

03D?J  V.  CLAYCOMB,  Ills.,  1869. 

Action  for  assault  and  battery.  ,  Plff.  had  advanced  upon  deft,  in  a 
threatening  manner  for  the  purpose  of  fighting,  and  deft,  had  beat  hiiri. 
Judge  charged  that  if  plff.  started  it,  he  could  not  recover,  even  though 
deft,  had  far  exceeded  n'ere  self-defence  in  the  beating  he  gave  plff., 
provided  he  desisted  so  soon  as  plff.  asked  hini  to;  also  that  plff.  in  or- 
der to  recover  should  have  given  no  provocation.   Verdict  fo-  deft.   Ap- 
peal. ^"'  ~  .  these  charges  were  wrong.     Lo  first,  no  more  vio- 
lence can  ce  usua  than  a  reasonable  man  would  under  the  circumstances  re- 
gard necessary  for  his  defence.   As  to  second,  no  matter  what  plff.  did 
by  way  of  provocation,  if  deft,  went,  the  least  bit  beyond  self-defence  he 
was  guilty  of  battery.   Judgment  reversed. 

The  question  as  to  when  a  man  may  take  the  life  of  another  is  left  tc 
the  course  on  criminal  law.   Self-defence  is  treated  there  more  fully. 
.  -naJ  I  consider  here  only  part  of  the  subject. 

As  to  defence  of  self,  in  cases  where  killing  is  not  allowed: 

1st.   Force  is  allowed  only  in  face  of  apparent  overwhelming  danger. 

?nd .   Actual  danger  not  necessary,  reasonable  apprehension  enough. 

3rd.   Mere  apprehension  not  enough,  must  be  reasonable. 

4th.   The  assailed  person  is  not.  under  obligation  to  retreat  before 

resorting  to  reasonable  mean-^  nf  ■"<:>ir  wo4> 

"•^-n.  01  ^eli -defence,  short  of  such  means  as 


follow.   Question  is,  when  are  the  gloves  procerly  padded? 

Section  VI,  'Excusable  Trespasses,  ^       -  u^ 


^ 


Y> 


\>'1>  ^X. 


?1. 

n:ieht  probebiy  endanger  iif-e. 

FrovckinR  words  n:ay  t^^'  a  defence  in  2  criminal  action,  but  are  not 
in  a  civi,  action.   Thex/'n;ay  reduce  dsn;ages.  2   Sedgwick  on  lamaees. 
Sec.  457.   But  this  is  ^he  best  rule,  vi2..,  they  should  only  reduce  pun- 
itive damages,  not  compensatory  damages. 

Person  is  not  bcuqa  to  stana  on  a  passive  defence;  may  make  an  actu- 
al use  of  force.   He/cannot  take  law  into  his  own  hands  and  punish  at- 
tacking party. 

X'L'^;  V.  f-'RSKINy',  c.  10?,  New  Hampshire.  1857. 

Trespass  for  assault  and  battery.   Deft,  pleaded  that  though  he  did 
assault  plff.,  latter  used  excessive  force  in  defending  hiirself.   Ques- 
tion was,  could  pl'ff's  cause  of  action  be  lost  through  subsequent  wrongs 
ccrr.Tiitted  by  hin^selif.   HELD,  that  it  could  not.   Plff.  had  right  to  use 
a  necessary  amount  of  force  in  self-defence.   But  for  whatever  he  used 
in  excess  of  that,  he  was  liable.   Bor  this  he  was  guilty  of  assault, 
but  plff's  original  assault  cannot  be  set  off  against  this.   Sach  party 
fray  .maintain  an  action  for  the  injury  received,   Judgnient  for  plff. 

Singular  conflict  of  authority.  ^-'lliott  v.  Brown  is  exactly  oppo- 
site, ii.  was  small  man,  B.  large  and  poweful.  &.  struck  B.,  B.  threw 
him  down  twice,  pounded  hifn  unmercifully.  B.  sued  ^;.  Oourt  held  that 
man  using  excessive  force  again?^  ^tt?ck?,  thereby  loses  ri-'nt  of  action 
against  original  wrong  doer. 

Law  dees  not  allow  set  off  in  torts.   ?.'any  courts  would  however  al- 
low set  off  of  judgment.   Bishop,  Non-3ontract  Law  Sec.  ?00  thinks  in  a 
case  of  assault  upon  each  other,  they  both  ought  Lo  be  turned  out  of  court 

Prof.  Smith  thinks  both  parties  have  a  cause  of  action. 

K'':::K  v.  H\LSTEAD,  p.  105.  King's  Bench,  1599. 

Trespass  for  killing  mastiff.   "eft.  pleaded  that  it  was  a  savage 
Gcg,  addicted  to  biting;  that,  ii  carr;e  into  his  yard,-  so  that  he  was  afrai 
to  go  out,  of  which  plff.  had  notice.   Flff.  refused,-  at,  deft's  request,, 
to  keep  the  dog  away.   Consequently  aeft.  shot  the  dog.   H^LD,  that  the 
plea  was  good.   Judgirient  for  deft. 

Had  dog  been  on  highway,  deft,  could  not  have  shot  hirr,  but  dog  came 
into  his  yard  and  plff.  had  notice.   A  man  has  the  right  to  go  out  in 
his  yard.   Plff.  was  reasonably  afraid,  and  justified  in  shooting  the 
dog. 

MORRIS  V.  NDSENf,  p.  105,  Nisi  Prius,  1B36. 

Trespass  for  shooting  plff's  dog.   The  dog  was  of  a  mischievous  dis- 
position and  had  bitten  others.   As  deft,  was  passing  plff's  house,  the 
dog  ran  out  and  bit  deft's  gaiter,-  and  then  ran  away,  and  as  he  was  run- 
ning deft,  shot  him.   H'^.LD,- that,  to  justify  shooting  a  dog  the  animal 
musL  be  actually  attacking  the  party  at  the  time.   It  made  no  difference 
that  he  was  ferocious  and  at  large.   Verdict  for  plff.   The  troub-lfe' in 
this  case  variance.   The  deft,  set  up  one  plea  and  proved  another  state 
of  affairs.   The  court  held  however  that  deft,  must  stick  to  the  lan- 
guage of  his  plea.   On  general  grounds  oerhsps  he  would  have  been  excusa- 


Die.   fn  cc  i^.h.  dl2-414  the  court  saia  a=:iL.  had  a  rifehi  in  .Vcrris  v. 
Nugent  to  do  what  was  reasonably  necessary,  and  it  was  a  question  for  the 
jury  whether  aet't.  in  the  excitement  and  confusion,  had  such  reasonable 
acprehension  as>  to  justify  his  shot. 

JHLFJIN  V.  ^foniack  109  Mass.  275.   Hi^^LC-,  although  the  dog  in  that 
case  was  dangerous  and  acouston'.ed  to  bite  those  who  came  near  it,  yet  as 
it  was  confined  s6  that  persons  properly  on  the  premises  were  in  no  dan- 
ger frcn:  it,  and  d^ft.,  had  not  been  attacked  by  it,  he  was  not  Justified 
in  shooting  it. 

bl'  beience  of  Property,  Anonymous,  King's  Bench,  1470.  p.  110. 
Trespass;   Defence,'  attempt  to  rob.   HFLD,  a  man  may  use  force  upon 
another  to  prevent  his  stealing  from  him. 

A  man  ir.ay  use  force  to  protect  his  property. 

GRIilfN  V.  GCCDARD,  p.  110,  Queen's  Bench,  1703-1705. 

Trespass,  assault  and  battery.   Deft,  pleaded  that  a  bull  broke  into 
his  close  and  as  he  was  driving  him  cut,  plif.  came  into  the  close  and 
tried  to  drive  him  back,  when  deft,  by  force  ejected  plff.   Plff.  de- 
murred, arguing  that  he  should  have  been  asked  to  leave.   H^'iLC,'  that  in 
case  of  forcible  trespass,  as  burglary  or  breaking  down  gate,-  injured  par- 
ty may  oppose  force  with  fore?,  but  if  a  man  nerely  enters  one's  close, 
that  will  not  justify  an  assault  without  first  a  request  to  leave. 

If  a  trespasser  enters  quietly,  vou  must  order  him  off  before  force 
can  be  used,  but  otherwise  if  he  enters  forcibly,  as  a  burglar,-  then  vcu 
may  use  fore?  to  eject,  and  any  amount  of  force  that  is  necessary. 

OOLLINc  V.  r..'i;Nr?.ON.  p.  ill.  King's  Bench,- 1754. 

Trespass  for  overturning  a  ladder  and  throwing  plff.  to  t,he  ground. 
Oeft.  pleaded  that  plff.  against  hs  will  put  up  a  ladder  in  deft's  gardeii, 
and  in  spite  of  deft's  forbidding  him,  climbed  up  and  started  to  nail  a 
board  to  the  house;  whereupon  deft,  overturned  the  ladder,  doing  plff.  as 
little  damage  as  possible.   Demurrer.   H!':LD,  that  such  force  is  not.  jus- 
tifiable in  defence  of  the  possession  of  land.   Overturning  of  the  ladcs: 
could  not  answer  purpose  of  removing  plff.  from  the  garden. 

Probably  there  is  no  right  to  imperil  life  and  limb  to  remove  a 
trespasser. 

TULL^Y  V.  REED,  p.  112,  Nisi  Prius,- 1S23. 

/•ction  for  assault  and  battery.   Heft,  pleaded  general  issue,  and 
special  pies  of  moUiter  manus  imposuit.  W''\y- ,   that  if  a  person  enters 
another's  house  forcibly,  force  fbut  no  more  than  is  necessary)  may  be 
used  in  turning  him  out,  without  a  previous  request  to  depart.   But  if 
the  person  enters  quietly,  force  may  not  be  used  without  a  previous  re- 
quest. 

OOMMONWEALTW  v.  0[.ARK,  p.  112  Mass.  1840. 

Assault  and  battery.   Deft,  entered  one  Briggs'  close.   Refused  to 
go  when  repeatedly  told  to  do  so.   Then  Briggs  used  some  force,  exactly 
what  was  not  certain.   Ocurt  instructed  jury  that  Briggs,  after  request 
to  leave  and  refusal,  had  right  to  use  proper  force;  if  jury  thought  he 


2?.. 

used  too  much  or  inappropriate  force,  then  he  was  jJuilty  of  first  assault, 
otherwise  not.   Verdict  for  plff.   Ceft.  alleged  excep|ions  to  court';. 
instructions.   H!i'LD,' that  the  court's  instructions  v/er®  correct.   there 
were  two  questions  for  jury  to  answer:  1st,  did  Briegsjhave  gooQ  reason 
for  using  force,'  2nd,  was  the  force  he  used  appropriate  in  kind  and  sui- 
table in  degree  to  accon:piish  the  purpose.   Judgment  on  the  verdict. 

The  defence  was  that  Briggs  used  unjustifiable  force,  and  deft,  was 
justified  in  returning  force.   But  court  said  that  because  force  would 
constitute  a  battery,  it  was  no  reason  why  it  could  not  be  justified. 
Questions  were  whether  force  was  justifiable,  and  whether  it  was  appropri- 
ate. 

''0  repel  entrance  on  land  or  to  defend  property,  a  ntoderate  amount 
of  force  is  allowed.   If  the  entry  is  peaceable,  force  can  only  bs  used 
after  request  to  depart.   Owner  must  try  tc  push  the  trespasser  off  be- 
fore striking;  there  is  but  little  definite  authority  to  allow  a  Hian  to 
use  force  except  in  defence  of  person  and  property.   Clerk  &   Lindseli  or, 
Torts,  p.' 107. 

■•^/inHURST  V.  DAMMK,  p.  114,  King's  Bench,  1604. 

Trespass  for  killing  a  dog.   Deft,  pleaded  that  he  was  warrener  ol 
a  certain  warren,  and  used  to  find  the  dog  killing  conies  there,  where- 
fore he  killed  him.   Demurrer.   HR'LO,  that  tc  save  the  conies  was  good 
cause  for  killing  the  dog.   The  cofr'mon  custom  in  '•mgiand  of  killing  dcgs 
and  cats  found  in  warrens  is  so  well  established  as  to  be  lawful. 

You  cannot  always  sue  the  owner  unless  he  knew  of  the  evil  qualities 
of  the  aniiral,  but  if  attacked,  you  may  always  kill  the  animal. 

Plff.  had  a  right  lo  keep  conies.   Here  the  decision  is  put  on  the 
ground  of  the  coimon  use  of  Fngland.   Today  it  would  be  put  on  the  groun: 
of  reasonable  necessity. 

JA.NSCN  V.  BSQA'N,  p.  115,  Nisi  Prius,  1307. 

Trespass  for  shooting  piff's  dog.   Heft,  justified  his  act. on  the 
ground  that  the  dog  was  worrying  and  attempting  to  kill  a  fowl  of  deft's 
and  could  not  otherwise  be  prevented  from  so  doing.   It  appeared  that  dot 
had  just  dropped  the  fowl  from  his  mouth  when  the  gun  was  fired.   tiELL', 
that  this  was  not  a  justification,  for  in  order  to  excuse  the  shooting, 
the  dog  must  have  been  in  the  very  act  of  killing  the  fowl,  and  not  to 
be  prevented  by  any  ether  means.   Verdict  for  plff. 

The  case  can  only  be  defended  on  the  ground  that  the  court  held  Lhe 
deft,  to  prove  his  plea  very  strictly;  court  was  too  strict  in  their  re- 

quirenient.   The  case  is  criticized  in  53  N.H.,  410-411. 

53  i-i-H.  411,' Aldrich  v.  /('right,  referring  to  Janson  v.  Browr^  says, 
"The  dog  might  have  been  lawfully  killed  when  he  had  the  fowl  in jfis  mouth 
and  the  fowl  being  wholly  or  partly  in  his  n-cuth,  or  an  inch,  a  ^ot,  a 
rod,' or  20  rods  distant,  is  all  a  matter  of  degree  and  of  tact,  for  the 
consideration  of  the  jury,  on  the  question  of  the  danger  and  the  reasona- 
ble means  of  protecting  the  fowl." 

L^IONARD  V.  I'^TLKTNS,  p.  115,  Mew  York,  131?. 

Trespass  for  shooting  oiff's  dog.'  The  dog  was  in  a  field  of  deft. 


''A 


c 


[•unnine  with  a  fowl  in  his  mouth.   Deft,  callsd  after  him,  then  fired. 
HELD,- that  as  the  dog  was  on  land  of  deft,  in  the  act  of  destroying  a 
fowl,  deft,  was  justified  in  killing  hi.n.   The  only  question  in  these 
cases  is  whether  the  killing  was  justified  by  the  necessity  of  the  case. 

You  fray  shoot  a  dog  that  is  attacking  yourself  or  your  property,  but 
you  cannot  sue  the  owner  unless  he  knew  of  the  dog's  vicious  quality. 
You  must  not  shoot  the  animal  if  he  is  retreating. 

OLARK  V.  K'^L1H!?R.  p.  113.  Mass.  1871. 

Plff.  suffered  his  hens  to  go  at  large.  Deft,  occupied  adjoining 
lot,'  and  hens  got  on  his  land.  Deft,  requested  plff.  to  shut  them  up, 
said  he  would  kill  their:  if  they  were  not  kept  off.  Plff,  refused,  where- 
upon deft,  killed  then:  all.  HELD,  that  this  act  was  not  justifiable. 
Deft,  should  have  contented  himself  with  legal  remedy  of  a  suit  at  law. 
Destruction  of  valuable  property  not  necessary  to  the  protection  of  his 
rights.   Notice  of  intention  makes  no  difference.   Judg.Tient.  for  plff. 

The  court  did  not  give  sufficient  attention  to  the  fact  that,  killing 
might  be  justifiable,  if  there  was  no  other  way  of  keeping  them  out,  and 
that  the  necessity  for  killing  hens  would  be  greater  than  in  the  case  of 
more  valuable  animals  which  could  be  impounded,  or  fenced  out. 

LIV&RMOP^'  V.  BATCHSLDfilR,  p.  117,  Mass.  1883. 

Tort  for  killing  plff's  dog.  Plff's  dog  was  on  deft's  premises  and 
killed  hens.  Ttie  dog  was  driven  away,  soon  returned  and  ran  toward  hen- 
house, when  deft,  having  reasonable  cause  to  believe  that  the  dog  was  go- 
ing to  kill  other  hens,  shot  him.  HSLD,  that  there  was  no  justification 
in  that.  Deft,  must  also  have  had  reasonable  cause  to  believe  that  it 
was  necessary  to  kill  the  dog  in  order  to  prevent  him  from  killing  the 
hens,  in  order  to  justify  the  shooting.   Judgment  for  plff. 

There  was  not  reasonable  ground  for  believing  that  there  was  no  other 
way  of  preventing  the  dog  from  doing  the  damage. 

The  decision  is  correct  on  these  facts,  but  if  the  doe  made  freouent 
incursions,  deft,  would  be  justified  in  killing  him. 

ALDRICH  v.  '.RIGHTv  P.  115,  New  Hampshire,  187H. 

Oeft.  in  order  to  recover  the  penalties  prescribed  by  statute  for 
killing  minks.   ^eft.  pleaded  that  the  animals  et  the  time  were  pursuing 
his  geese.   The  minks  hqvq   swimming  after  the  geese  and  were  from  one  to 
three  rods  away  when  something  frightened  them  and  they  crawled  out  on  an 
island.   Just  then  deft,  appeared  and  shot  them.   Verdict  for  plff.  sub- 
ject to  deft's  exception  to  ruling  that  he  would  not  be  justified  if  the 
geese  were  not  in  imminent  danger  and  could  have  been  protected  by  driv- 
ing away  geese  or  frightening  away  minks.   HRLD,  thst  if  all  things  con- 
sidered,' deft's  shot  was  reasonably  necessary  to  prevent  mischief,  he  was 
jufetified.   He  could  not  be  compelled  to  drive  the  geese  away  if  he  wish- 
ed to  keep  them  there,  and  if  killing  minks  was  reasonably  necessary  for 
his  business  of  geese  raising,  he  was  justified. 

The  decision  of  the  court  is  much  longer  in  the  original  report  than 
here,  and  is  very  valuable  for  it  criticizes  many  cases  of  this  sort. 
Charge  of  the  lower  judge  is  well  criticized  in  this  decision.   Tt  r-e- 
Quire.  too  .real  actual  dan.er.  .wha.eas  t.e  ..„., 

"■-'■'tsa,dappa,3„ 

aanger 


2e. 

was  suffioienl. 

In  cases  of  shooting,  one  n:ust  regard  both  the  consequences  ol"  shoot- 
ing and' of  pot  shooting,-  the  expenses  of  other  means  of  protection  as 
well  as  the  one  in  question. 

This  case  holds  that  in  determining  what  is  ceasonabiy  necessary  in 
defence,' considerations  of  econoaiy  must  be  taken  into  account. 
'^   ■   DAVIS  V.  CAMPBi'lLL,  p.  121,  Verrr.ont,  1351. 

\    Trespass  for  injury  to  plff's  cow  by  sieans  of  a  dog.   Plff's  cow,- 
rVinning  at  large  in  the  highway,  entered  deft's  enclosure  and  did  damage. 
Daft,  caused  cow  to  be  driven  away  by  dog,  and  dog  bit  here  severely. 
HBifD,-  as  facts  show  that  the  dog  to  have  been  such  a  one  as  a  man  of  or- 
dinary prudence  would  have  used  in  driving  his  own  cows,  and  deft,  to  have 
used  due  care  in  setting  him  on  the  cow,  he  cannot  be  held  liable. 

It  is  not  necessarily  unlawful  to  set  dog  on  aninial  to  drive  it  csway, 
as  this  case  shows.   It  is  all  right  v/hen  a  reasonable  farir-er  would  do 
the  sanie  to  his  own  property. 

DICEY  on  the  Constitution,  ^-th  ^:i.   App.  Note  ^1  speaking  of  the  right 
to  use  force  in  defence  of  property  says,  "The  righL  is  confessedly  indef- 
inite;" and  that  it  !;;usl  be  a  conipromise  between  two  suppositions,,  viz... 
that  one  niay  use  unlimited  fores  in  defence  of  property,  and  that,  one  may 
not  use  any  force  in  defence  of  property. 

Dicey 's  remarks  on  self-defence  are  the  best  ever  written. 

It  is  a  coninion  belief  that  a  man  can  use  all  necessary  force  in  de- 
fence of  property.   This  is  not  true,  for  one  may  not  inflict  upon  the 
wrongdoer  harm  out  of  proportion  to  the  right  to  be  protected,  even  if  in 
defence  of  property  or  personal  liberty. 

SECTION  VI.  (continued.) 

(e)   .Recovery  of  Property. 

ANNCNY?.^OUS  King's  Bench,  1506.  p.  129. 

Trespass  for  assault  and  battery  and  beasts  taken.   Deft,  says  he 
possessed  a  horse  and  plff.  took  it  cut  of  his  possession.   Deft,  asked 
him  for  it,  plff.  refused  to  give  it  up.   Deft,  threatened  to  take  it  if 
he  would  not  give  it  up,  then  went  toward  plff.  with  a  staff ,  which  is 
assault  complained  of.   HDLO,.  .justifiable  assault. 

Ahere  there  is  a  right  to  use  force  to  retake  personal  property. 

There  is  a  right  to  use  a  reasonable  amount  of  force  to  protect 
property  in  your  possession  as  well  as  your  person.   There  is  also  a 
right  to  use  force  for  intniediate  recaption  to  some  extent  as  to  defend 
your  possession,   LSeale's  Cr.  Cases,  85?,  C. v. Donahue.   A'here  attempt 
to  recapture  is  made  after  the  lapse  of  time,'  there  is  a  conflict  of  au- 
thority.  Blades  v.  Higgs  settles  for  England  that  there  is  such  a  right, 
even  to  take  from  the  bona  fide  purchaser  from  a  thief;  the  ■•-.!.  :,:.se  p. 
133,^ draws  the  line  at  bona  fides. 

''hole  law  of  self-defence  is  a  compromise:  Dice.i  on  the  Constitution, 
/ipp.  Note  4,   Prof.  Smith  suggests;  Forcible  recapture  is  not  allowed  ex- 
cept, either, ^  1.  'Vhen  possessor  does  not  hold  under  a  bona  ^de  claim  of 
right,  (Kirby  v.  I^oster,)  or  (?),  Ahen  there  is  reasonable  Sound  <to  be-  *" 
lieve  that  owner  will  not  be  able  by  legal  proceedings  ^c  recover  the  chat 


26. 

tei  Of   to  obtain  pecuniary  satisfaction,  and  possibly,'  (3)  When  possession 
must  be  had  at  once  or  not  at  -ill,  in  order  to  be  beneficial,  as  ticket 
to  a  Lhaatre. 

In  Ihe  Anonymous  ci:ss  il  is  not  cietr  v.nsLr.-r  lu  .vas  an  i!i.:i.c;;ii:ic 
reciptionvor  not.   The  use  of  staff  might  raise  s  question  today  as  to 
whether  for-ce  used  was  reasonable  or  excessive. 

BLAD!?Sv.  HI333,  p.  1?9,  Ocnimon  Fleas,  1861, 

Trespass.   Declaration  alleged  assault  and  taking  from  p^ff.  his 
goods,  dead  rabbits.   Deft,  pleaded  that  plff.  Look  the  goods  wrongfully 
fronfi  deft's  master  and  deft,  took  them  back,  using  no  more  force  than  was 
necessary.   Demurrer.   H^LD',  that  plea  is  good.   In  defending  actual 
possession  deft,  certainly  would  be  justified  in  using  force.   No  sub- 
stantial difference  between  that  case  and  this.   Wrongful  detention  same 
violation  of  right  of  property  as  wrongful  taking.   Argument  as  to  breac 
of  peace  has  been  overruled  in  case  of  forcible  expulsion  of  trespasser 
frofl:  land.   Same  applies  to  chattel.   Remedy  by  law  would  often  be  worse 
than  the  mischief,  when  law  would  aggravate,  instead  of  redressing. 

[he  case  arose  on  a  demurrer.   The  rabbits  were  purchased  by  plff. 
from  poachers  who  had  ki'iled  them  on  the  Marquis's  land.   Ttiere  is  no 
allegation,  whether  the  holding  was  in  good  orbad  faith.   The  court  said 
no  allegation  was  necessary,  as  to  good  or  bad  faith.   Also  says  deft, 
was  practically  in  possession,  as  much  as  if  the  rabbits  had  been  taken 
from  his  hands,  because  after  demand,  and  refusal,  possession  was  in  law 
in  the  !.<arquis.   The  reasoning  is  purely  artificial,  and  is  not  to  be  in 
any  way  sanctioned. 

The  case  stands  for  the  point  that  the  owner  of  goods  which  are 
wrongfully  in  the  possession  of  another  may  .iustify  an  assault  involving 
no  unnecessary  violence  in  order  to  repossess  himself  of  his  prcperty. 

BCBB  V.  BOS'/iO^THmp.  131,  Kentucky,  1308. 

.Assault  and  battery.   Deft,  was  in  possession  of  a  slave  which  was 
subject  to  dispute  between  the  parties.   Plff.  came  and  assaulted  deft, 
to  get  slave  away.  \\%d,   that  no  matter  which  party  had  better  right  tc 
slave,  one  could  not  use  violence  in  taking  it  from  the  other.   Forcible 
defence  of  possession  is  allowed,  and  peaceable  recaption,  but  net  forci- 
ble recaption.   Judgment  for  plff. 

The  case  was  one  of  forcible  recaption  taking  place  som.e  time  after 
the  taking.   It  was  held  to  be  wrong,  as  the  law  regards  the  preservation 
of  the  public  peace  of  more  importance  than  the  right  of  any  person  tc 
maintain  possession  of  his  own  prooerty. 

KISBY  V.  FOST'i^R  and  ANOTHf-^  p.  133,.  Rhode  Island,  1891. 

Plff.  was  in  deft's  employ.   Latter  gave  him  money  to  pay  help. 
He  deducted  from  it  a  sum  which  he  claimed  was  owing  him,  put.  it  in  his 
pocket  and  was  about  to  leave  when  deft,  seized  him.   A  struggle  ensued 
in  which  plff.  claims  tc  have  received  injury.   Verdict  for  plf:.    x- 
ceptions.   HBLD,-  that  a  man  can  undoubtedly  protect  himself  from  larceny 
by  force.   But  his  right  of  defence  and  recapture  involves  two  things: 
n^  t^ossession  by  owner;  (?)  wrongful  taking  without  a  claim  of  right. 


27. 

If  possession  has  once  passed  peaceably,-  law  does  not  allow  forcible  re- 
caption.  Leeal  remedy  .may  be  inadequate,  but  still  the  injured  party 
cannot  be  ar'biter  of  his  own  claim.   Law  gives  right  of  defence,  but  not 
or  redress./  txceptions  overruled. 

If  th:iiS  was  a  case  of  inimediate  recaption  (Smith  thinks  it  is  not) 
the  view  ae  to  bona  fide  taking  by  plff.  would  not  be  generally  followed, 
but  probably  it  is  a  case  where  plff.  had  been  in  possession  for  a  reason- 
able titnefi   The  court  distinguishes  between  a  purely  wrongful  taking 
without  qlain;  of  right,  and  a  technical  wrongdoer,  as  here. 

?.   H^rv.  Law  Rev.  28,  contains  stats.Tent  by  Prof.  Ames  as  to  the  old 
law  on  recaption. 

Foifcible  recaption  is  allowable  in  England  in  all  cases  except  possi- 
bly that  of  bailee  detaining  goods  beyond  time.   Not  allowed  in  America 
except  in  wrongful  taking  from  immediate  possession  of  owner. 

The  arguments  in  favor  of  immediate  recaption  are  (1),  the  taker  may 
be  pecuniarily  irresponsible  and  the  article  spirited  away  so  that  it, 
cannot  be  repievined.  (2),  the  article  may  be  perishable  and  so  useless 
unless  recovered  immediately.  f^') ,   Lsgal  remedies  are  more  or  less  dila- 
tory. 

The  arguments  against  forcible  recaption  are  (1),  it  tends  to  a 
breach  of  the  peace;  it  makes  the  recaptor  the  .judge  and  enforcing  officer 
of  his  own  case.   (2),  there  is  dunger  of  the  use  of  excessive  force. 
(3),  i'he  argument,  drawn  from  the  dilatoriness  of  the  law  is  really  a   rea- 
son for  improving  the  law  rather  than  for  casting  it  aside. 

BCBB  v.  BOS'rtORTH  held  that,  forcible  recaption  is  not  allowaoie  m  an.v 
case  and  this  is  the  general  rule  in  the  United  States.   But  the  oases 
allow  the  following  exceptions  to  this  rule  in  a  good  many  jurisdictions: 
(1)  Forcible  recaption  is  allowed  in  case  of  a  mere  wrongdoer,  with  no 
bona  fide  claim  to  possession.   (2)  •hen  it  is  probaole  that  no  adequate 
satisfaction  can  be  recovered  by  a  resort  to  law.   (3)  When  possession 
must  be  had  at  once  or  not  at  all  to  be  of  any  value. 

Nf'^TON  V.  HARLAND.  p.  136,  Ccmm.on  Pleas,  1840. 

Trespass  for  assault  and  battery  by  deft,  on  plff's  wife.   Flff. 
had  hired  a  house  of  deft,  for  six  months.   The  day  after  the  time  ex- 
pired, rent  not  being  paid, deft,  distrained  goods  of  plff.   Picked  locks 
of  doors.   Mrs.  N.  refusing  to  leave  on  request,  he  put  her  out  forcibly. 
Question  was,  whether  after  end. of  tenancy  and  notice  to  quit,  landlord 
may  enter  and  turn  tenant  out  forcibly.   HELD,  that  unless  deft,  was  in 
lawful  possession,  he  was  not  justified  in  expelling  '^rs.  B,  by  force. 
He  was  not  in  lawful  possession  because  he  entered  by  force.   Therefore 
he  was  not  justified  in  expelling  forcibly  a  tenant,  who,  having  lawfully 
come  into  possession,  merely  continued  to  hold  after  expiration  of  tine, 
forcible  ejection  alone  would  make  original  entry  a  forcible  entry  and 
hence  illegal.   Coitnan,  judge,  dissented  holaing  that  deft,  by  entry  ob- 
tained a  lawful  possession  and  was  justified  in  turning  out  plff's  wife  as 
an  ordinary  trespasser. 

Substance  of  Statute  of  forcible  entry:  ;iO  owner  shall  ;i.ake  forcible 
entry  on  his  own  land,  while  in  the  possession  of  a  wrongful  holder. 


28. 
ir  he   doas  hs  shall  he   punished  by  line  cr  iiiiprisonnienL,  and  Ihs  court 
will  also  order  possession  restorsd  to  the  wrongful  holder,  who  was  thus 
so  forcibly  ejected . 

Judgment  was  for  pilf.  8  to  1,  but  juaj^ss  raally  iuoou  .-  lc  o,  as 
Farke  ^:  Alderson  B.B.  decided  for  deft,  when  the  case  was  tried  before 
\heai.   The  case  is  not  law  in  l^ngland  today. 

['here  is  no  doubt  of  an  owner's  rights  to  take  forcible  possession 
of\hi3  real  property  at  once,  if  the  trespasser's  possession  is  only  .-no- 
nienlary.   In  both  cases  of  retaking  one  is  liable  for  excessive  force. 

\i   Amer.  Law.  »^eview,  -129,  says  that,  where  ihe  statute  prevails  there 
are  tlVee  views;  (1)  Tenant  n:ay  maintain  trespass  quare  clausum  f regit 
and  n;aiT)t.ain  assault  as  aggravation;  (2)  Tenant  cannot,  maintain  trespass 
quare  clausuir:  f regit,  but  can  rsiaintain  an  action  for  assault.   Mewton  v. 
Harland.   (3)  Tenant  can  maintain  no  civil  action  v»hatever  against  ow- 
ner.  Low  V.  ^:iwell  and  ndnority.   Newton  v.  Harland. 

The  second  view  is  not  consistent,  action  for  assault  ought  to  fall 
with  quare  clausuni  fregit.   Follcek  on  Torts.  2nd  ^i.  ?28. 

LOfl   V.  EL'.Vi^.LL  and  n^l,   p.  145.  Mass..  1876. 

Plff's  husband  occupied  a  house  under  an  oral  lease.   That  being 
deteririined  by  lease  to  deft,  and  notice  thereof  he  refused,  to  leave. 
Therefore  deft,  entered  and.  using  no  rrore  force  than  was  necessary  ex- 
pelled plff .   HRl.O,  that  as  tenant  has  no  right  of  possession  against, 
landlord  after  expiration  of  his  lease,  latter  is  not  liable  in  tort  for 
damages  for  forcible  entry,  or  for  assault  in  expelling  tenant,  if  he  uses 
no  irore  force  than  is  necessary.   Landlord  may  be  indicted  criminslly  for 
the  forcible  entry,  but  havine  right  ci  possession  as  against  tenant,  is 
not  liable  in  tprt,  to  latter. 

Court  here  says  wrongful  holder  can  bring  no  civil  action.   Case 
differs  from  Newton  v.  Harland.   These  are  cases  which  hold  that  tenant 
in  these  cases  can  even  bring  trespass  quare  clausum  fregit.   There  is 
undoubtedly  a  right  of  immediate  forcible  retaking  of  real  property. 
This  is  not  in  conflict  with  Statute  of  Forcible  entry.   Retaker  is  lia- 
ble of  course  for  excess  of  force. 

The  2nd  rule  given  above  under  Newton  v.  '-I&rlsnd  is  not  good;  if 
tenant  has  no  possession,  the  landlord  would  have  the  right  to  use  force 
in  putting  him  out.   Fee  Pollock,  2nd  Ed.  326.   Either  the  1st  or  the 
^rd  rule  must,  be  chosen. 

How  does  this  statut.e  of  forcible  entry  affect  the  discussion? 
Statute  prescribes  a  penalty  which  is  exclusive,-  landlord  having  paid  this 
penalty,  has  expiated  his  wrong.   Ansv^er  is  that  the  statute  forbids  as 
well  as  punishes.   Forcible  entry  being  s  crime,  ou.^hl  it  not  to  be  a 
civil  wrong  also? 

This  is  a  very  doubtful  point,  much  has  been  written  on  both  sides. 
Prof.  Smith  is  inclined  to  think  there  should  be  civil  action  also. 
Clerk  5:  Lindsell.-2.58. 

No  mattgr  if  your  state  follows  tjie  law  of  Low  v.  Elwell,  or  if  no 
forcible  entry  statute  is  in  force,  always  advise  a  landlord  net  to  use 
force  under  any  consideration,  as  the  jury  are  sure  to  so  against  him. 


29. 
Statutss  prevail  everywhere  giving  a  suirmary  process  for  regaining 
possession,  ror  sun:irons  before  a  magistrate's  court.   If  a  landlord  en- 
ters peaceably,  he  cannct  be  liable  for  quare  clausun:  f regit.   15?  111. 
177.   Having  entered  peaceably  he  can  do  anything  to  the  house  that  he 
wishes,  but,  the  jury  will  go  against  hini,  so  it  is  usually  best  to  use 
summary  process. 

HARVEY  v.  MAYNli.  p.  149,  Ireland,  1S72, 

Action  for  assault,  and  false  imprisonment.  •  Second  plea,  that.  plff. 
had  wrongfully  in  his  possession  a  certain  check  of  dsft's;  that  he  was 
in  their  office  of  his  own  accord  and  was  about  to  take  check  away  against 
their  will,  when  they  gently  laid  hands  on  him  and  detained  him  until  he 
gave  it  up.   Denmrrer.  WW:.,   that  though  Blades  v.  Higgs  justifies  an 
assault  in  recaption,^  there  is  no  authority  for  extending  the  principle 
to  an  jmprison.iient  for  an  indefinite  time.   Demurrer  allowed. 

•^Iven  those  authorities  which  hold  force  allowable  in  recapture  ao  not 
allow  imprisonment,, 

BURLING  V.  READ.  p.  15P,  3ueeri's  Bench.  1S50. 

Trespass  against  defts.  for  breaking  and  entering  plff's  workshop  and 
tearing  it  down.   Tt  appeared  that  plff.  built  the  workshop  without  any 
right,  on  land  to  which  defts.  as  parish  officers  had  title.   HELD,  that 
plff.  being  a  mere  trespasser,  owners  of  the  soil  had  a  perfect  right  tc 
pull  down  the  house.;   A  mere  stranger  never  acquires  title  by  intrusion 
except  by  Statute  of  Limitations.   Owner  can  dowhat,  he  likes  with  the 
property  whether  it  is  occupied  or  not. 

If  a  man  puts  up  a  house  without  right  on  your  Isnd,  you  can  tear  It 
down. 

Very  oc'i   policy  for  landlord  to  use  force.   Never  advise  hin:  to  do 
it.,  jury  will  be  against  him.   He  should  find  satisfaction  in  the  summary 
process  statutes  of  the  different  states.   Suppose  landlord  ent,ered  peace 
ably,'  then  of  course  trespass  quare  clausum  f regit  cannot  be  maintained, 
landlord  has  right  to  dismantle  house,  etc.,  but  jurv  is  likely  to  givt 
damages  to  tenant.  115  111.  177 

ANONYyOUS,  p.  153,  Common  Fleas,  1466. 

Trespass  quare  clausum  f regit.   Between  deft's  land  and  plff's 
there  was  a  thorn  hedge.   Deft,  was  cutting  the  thorns,  and  they  ipso 
invito  fall  en  land  of  plff.,:,  and  deft,  entered  to  take  them,:  which  is 
trespass  alleged.   HI^:LO,  that  as  falling  of  thorns  on  plff's  land  was  not 
lawful,  so  his  entering  to  take  them  was  not  lawful.   Not  enough  tc  show 
that  they  fell  ipso  invito,  he  must  show  he  could  not  possibly  prevent 
their  falling  on  the  ot.her  man's  land. 
See  Holmes  Common  Law  p.  108. 
ANTHONY  v.  HAN'fY,  p.  159.  Common  Pleas,.  1S82. 

Trespass  for  breaking  and  entering  plff's  close,  tearing  down  barn, 
outhouses,,  etc,  and  carrying  away  the  materials.   Deft.,  pleaded  that  he 
was  owner  of  said  barn,  etc.,  and  did  no  unnecessary  damage.   Demurrer, 
HW\),   that  to  enter  land  of  another  and  dig  it  up  as  in  this  case  to  get 
one's  property  is  taking  the  law  into  one's  own  hands  and  cannot  be  al- 


30. 
lowed.   But  even  if  deft,  had  not  injured  land  of  plif.,  he  must  at 
least  show  how  his  goods  came  there  before  he  can  be  allowed  to  enter  at 
will  and  take  then;.   Law  allows  entry  in  certain  cases,  as  where  goods 
were\on  another's  land  by  accident,  but  generally  does  not  allow  it. 
Judgment  for  plff. 

rn  Anthony  v.  Haney,  deft,  did  not  ir^ake  out  tjiat  the  goods  were  there 
by  theiplff's  act,  so  deft,  was  liable. 

The  fact  that  B's  goods  are  on  A's  iana  is  no  suiiicient  reason  why 
B  snould  go  upon  the  land  and  take  them.   If  goods  are  on  A's  land  and  B 
takes  them,  B  is  liable  for  nominal  damages  for  entry  and  for  actual  dam- 
ages to  the  land,  but  not  for  the  value  of  the  chattels.   If  B's  goods 
are  on  A's  land  by  fault  of  A,  he  aiay  enter,  but  if  by  fault  of  R,  B  tres- 
passes if  he  enters  A's  land  to  get  their,.   If  B's  hat  is  blown  on  A's 
land  by  accident,  B  can  probably  go  upon  the  land,  but  there  are  two 
views  on  this  point;  O)  I'hat  B  may  enter  en  condition  that  he  repair  the 
damages;  (2)  That  he  is  liable  anyway  in  quare  clausutri  f regit.   B  could 
probably  reolevin  the  hat. 

If  B's  goods  are  taken  by  a  third  person  and  put  on  A's  land,  if  A 
knew  that  they  were  feloniously  taken,  fi  could  enter  and  take  them.   If 
B's  goods  are  taken  by  one  nierely  comn-itting  a  trespass  and  not  a  crin.e 
and  A  allowed  then,  to  be  put  upon  his  land,  B  could  probably  enter.   If 
goods  are  put  there  with  the  consent  of  '> ,  but  a  not  knowing  they  '/vere 
taken  feloniously  or  tcrtiously,  B  cculc  enter;  A  takes  his  risk.   If  B's 
goods  are  taken  tcrtiously  and  put  there  without  A's  consent,  B  could  not 
enter.   Biggins  v.  Andrews,  p.  'Ic?. 

Ames  240-242,  note  on  right  of  officer  to  enter,  to  serve  civil  pro- 
cesses.  If  A  allows  B  to  keep  B's  goods  on  A's  land,  B  could  enter,  but 
some  of  the  authorities  the  other  way;  mortgage  case  105  ''Jfass.  403.   If 
B  puts  his  goods  on  A's  land,  A  may  enter  B's  land,  to  carry  their  back. 
PATRICK  V.  COLIiRIOK,  Exchequer.  1938. 

Trespass  for  breaking  and  entering  plff's  close  and  carrying  away 
straw.   Plea,  that  plff.  had  wrongfully  taken  the  straw  from  deft's  pos- 
session and  put  it  upon  his  close,  and  that  deft,  made  fresh  pursuit  and 
Look  it  away  peaceably.   Hk;IjD,  that  entry  on  another's  land  to' take  back 
one's  goods  is  justifiable  when  the  goods  came  there  by  act  of  owner  of 
the  land.   Judgment  for  deft. 

5IGHTJO_[J3LE9H:LTQ_R|iGOV|^_LAND. 

If  the  owner  of  land  makes  peaceable  entry  en  his  land,;  he  would  not 
be  liable  for  force  in  repelling  force.   If  he  enters  fraudently,  there 
is  a  conflict  of  authority  as  to  whether  he  may  so  use  force.   Ii  is 
also  doubtful  as  to  whether  excessive  force  makes  the  landlord  a  trespass- 
er ab  initio. 

Forcible  entry  statutes  exist  in  most  of  our  States.  ?ee  Am.  Cecis:- 
ions  138-140  for  an  elaborate  note  on  forcible  entry.  See  also  2  Bish-  ' 
op's  New  Criminal  Law  504-512. 

To  violate  the  statute  of  forcible  entry  there  must  be  more  than  a 
mere  technical  trespass  -  it  does  not  require  physical  violence  to  tenant.. 


31. 

There  must  be  physical  force  used  upon  the  premises,  or  threatened  against 
the  occupant. 
SKSTION  VI  (continued). 

if)   Preservation  of  Life,  Llealth,  or  Property  of  Others, 
^f<,:TCH'':H  V.  FLtCTCH'^R.  p.  y63.  Queen's  Bench,  1559. 
/declaration  for  assaulting  plff,  and  giving  him  into  custody  lasting  a 
/long  time.   Plea,  that  {Jlff.  acted  Ike  a  lunatic,  that  deft,  thought  he 
was  one,  and  two  physici,ans  had  certified  that  he  was  one,  hence  deft.,  be- 
ing plff  s  uncle  had  ca^ised  him  to  be  placed  in  an  asylum.   Demurrer. 
HELD,  that  by  common  law  only  a  person  of  unsound  mind,  dangerous  to  him- 
self or  others,  may  be  restrained  of  his  liberty  by  another.   But  mere 
fact  that  person  acts  like  a  lunatic  is  no  .justification  for  locking  him 
up,  nor  fact  that  one  or  two  physicians  say  he  is  a  lunatic.   Judgment 
for  plff. 

If  a  man  is  insane  and  dangerous,  any  one  can  imprison  him  temporarily. 
]f  one  sees  his  actions  and  has  reasonable  cause  for  believing  he  is  in- 
sane, he  can  temporarily  restrain  him,  but  he  becomes  liable  if  the  per- 
son is  confined  for  a  lone  time.   To  confine  him,  he  must  prove  his  in- 
sanity and  follow  the  statute,  if  there  is  one.   If  there  is  no  statute 
on  the  matter,  he  should  have  a  guardian  appointed  for  him  or  have  him 
committed  by  order  of  the  court.   In  "Ingland,  the  superintendent  of  an 
asylum  is  justified  in  receiving  a  person  alleged  to  be  insane,  if  the 
certificate  that  he  is  insane  is  signed  by  two  physicians.   The  certifi- 
cate excuses  the  superintendent.   The  person  who  brings  about  the  commit- 
tal is  protected  by  statute,  if  he  does  it  as  above.   The  certificate 
can  be  inquired  into  on  habeas  corpus  proceedings  to  get  him  out,  and  you 
may  go  into  the  question  of  his  condition  when  he  was  put  in,  and  at  the 
time  of  applicition  for  release,  in  such  inquiry. 

Dfi;«Y  v..  mUl   and  OTHERS,  p.  155,  Nisi  Frius,  1327. 

Trespass  for  throwing  chimneys  on  roof  of  plff's  house  and  damaging 
the  same.  Defts.  were  firemen.  House  next  to  plff's  was  on  fire.  It 
steed  close  to  a  highway  and  in  order  that  chimney  might  not  fall  on  the 
highway  tp  the  great  danger  of  passers-by,  deft,  had  them  throw  it  down, 
so  that  it  fell  on  plff's  roof.  HSLD,  that  deft's  act  was  justifiable. 
It  was  their  duty  and  right  to  remove  the  chimneys  and  orevent  their  re- 
maining to  endanger  lives  of  passers-by. 

3UR0C00  V.  G^^^ARY,  p.  16S,  California,  1S53. 

Action  to  recover  damages  for  blowing  up  plff's  house  and  goods  dur- 
ing a  fire.   Deft,  as  fire  officer,  claimed  he  had  the  right  to  destroy 
the  building  in  case  of  real  or  spparent  necessity.   H^''LO,  that  right  to 
destroy  property  lo  prevent  spread  of  fire  is  based  on  necessity.   Such 
property  becomes  a  nuisance  which  it  is  lawful  to  abate.   "'henever  ap- 
parent necessity  can  be  shown,  destruction  of  property  is  justifiable. 
Judgment  for  deft. 

The  Mayor  was  justified  in  blowing  up  ths  property  if  there  w^s  ap- 
parent reasonable  necessity  to  do  so  in  order  to  save  other  property.  2 
Indiana  35.   That  is  the  doctrine  of  the  common  law.   Apparent  reasona- 
ble necessity  must  be  shown  by  the  deft,  in  his  defence.   A  man  may  de- 


3??. 
stroy  property  to  avert  harir.  when  the  harm  averted  is  niater-iaily  greater 
than  the  harm  done.   Stephens'  Digest  of  the  Criminal  Law  Sec.  32  says 
the  deft,  may  shw  that  the  evil  inflicted  by  his  act  ivas  not  dispropor- 
tionate to  the  evil  averted. 

here  there  is  a  statute  on  the  subject,  the  state  or  city  pays  as 
I  or  an  appropriation  of  the  property.   In  such  case  a  private  person  must 
prove  absolute  necessity,  while  an  official  is  only  bound  to  use  care. 
He  is  not  liable  for  an  error  of  jugment.   Probably  where  statutes  exist 
on  the  subject,,  they  do  exclude  the  ccrnnion  law  right  of  the  citizen. 

If  three  officers  are  authorized  by  statute  and  only  one  acts,  the 
city  would  not  be  liable;  2   Dillon's  Municipal  Corporations  4th  ^d.   Sec. 

Can  I  blow  up  a  house  when  twenty  are  in  danger  thoigh  I  don't  own 
any  of  them?   Yes.   8  Zabriskie  (N.'J.)  590.   The  loss,  might  be  as- 
sessed on  those  whose  property  is  saved,  as  in  case  of  ships,  but  such  as- 
sessment would  be  difficult  of  adjust  ment. 

The  constitutional  law  provides  that,  private  property  shall  not  be 
taken  for  public  use,  without  just  coffipensation.   The  courts  make  a  dis- 
tinction between  appropriation  f taking)  and'  destruction.  ?,   Harvard  Law 
Review  203-2Q5. 

PRXTOR  V.  ADAMS  and  OTHERS,  p.  159,  Mass.,  15173. 

Trespass  for  entering  plff's  close  and  taking  away  boat.   Close  in 
question  was  a  beach.   Defts.  went  there  between  high  and  low  water  mark 
and  carried  away  a  boat  they  found  lying  there,  which  had  been  cast  up  by 
the  sea.   HSLD,  that  if  boat  was  in  danger  of  being  lost,  defts.  had  a 
right  to  enter  and  take  it  for  purpose  of  restoring  it  to  true  owner.   It 
is  an  old  rule  of  ccnucn  law  that  an  entry  on  land  to  save  goods  in  dan- 
ger of  being  lost  or  destroyed  is  nottrespass. 

As  a  matter  of  fact,  defts.-  here  delivered  boat  to  owner  and  claimed 
reward.   They  were  not  justified  if  boat  were  thrown  high  and  dry, 

HOUSE'S  CASE.-  King's  Bench.  160B. 

Trespass  for  taking  a  casket  containing  n^cney.   ihe  casket  was  en  a 
ferry  boat,  with  the  owner.   A  teir:pest  arose  and  passengers  would  have 
been  drowned  if  certain  goods  had  not  been  cast  out  to  lighten  the  boat. 
Deft...  threw  the  casket  overboard.   HI^LC,  that  he  had  a  right  to  do  sc. 
To  save  lives  of  men,  it  is  lawful  to  cast  property  overboard.   if  fsr- 
ryn;an  overloaded  the  boat.,  he  is  responsible,  otherwise  it  is  only  Act  cf 
God  and  nobody  is  liable. 

This  is  a  case  on  niaritiire  law.   Jettison  must  begin  with  the  arti- 
cles least  necessary,  least  valuable  and  heaviest.   Ey  the  iraritime  law 
the  plff.  would  not  lose  the  entire  value  of  all  articles  tnrcwn  over- 
board.  Those  saved  would  have  to  contribute  tneir  proportional  part  to 
make  up  his  loss.   If  a  person  without  property  is  saved,  he  does  not 
have  to  contribute,  as  he  had  nothing  in  peril.   Jettison  cannot,  except 
in  extreti'e  necessity  begin  without  the  captain's  orders.   3  Kent's  Com- 
uentaries  Star  pages  232  and  233. 

KIRK  V.  GRFCORY  and  'Hl^^',   p.  17^,  -xchequ^r.  187?. 


Plt'f's  testator  lied  in  his  own  nouse  of  dsiiriuni  tremens,' a  crovd  oi 
feasters  and  rioters  being  around.   Deft.,  a  relative,  pu.t  sotrie  jewelry 
in  a  box  and  locl'Sd  it  up  in  a  cupboard  for  safe  keeping,  as  she  said. 
Plff .  as  executor,  went  to  get  them  and  found  they  were  missing.   Hence 
this  action,-  first  court  charging  conversion,  second  trespass.   Jury 
found  that  deft,  put  the  things  away  bona  fide  for  purpose  of  preserving 
theni.   Hf'.LD,  that  deft,  must  also  prove  that  the  interference  was  reason- 
ably necessary,  in  order  to  justify  it.   Nominal  damages  for  plff. 

To  justify  interference  with  another's  personal  property  one  must 
\ prove,  besides  good  intentions,  apparent  reasonable  necessity  Lo  interfere 
'tp  save  the  property  from  dan-age  or  destruction. 

PUTNAM  v.  PAYNR,  p.  175,  New  York,  1S16. 

Deft,  brought  action  in  court  below  against  plff.  for  killing 
his  dog.   Deft,  knew  of  ferocious  acts  of  dog.   The  dog  had  in  addition 
been  bitten  a  few  days  before  by  a  mad  dog.   There  was  general  alarm  in 
the  village  on  account  of  mad  dogs,  and  the  authorities  had  passed  a  law 
authorizing  the  killing  of  any  dog  found  at  large.   HELD,  that  regardless 
of  this  law  of  the  village,  common  law  justifies  plff.  in  killing  the  dog. 
It -was  a  di^ngsrous  animal,  which  owner  kept  in  a  negligent  manner,  and 
which  might  well  be  killed  as  a  nuisance.   Further,  as  the  dog  had  been 
bitten  by  a  mad  dog,  public  safety  demanded  that  he  be  killed. 

SECTION  VI.  (continued). 

(h)  Abatement  of  Nuisances. 

JAMES  v.  HAYiVARD,  p.  183,  King's  Bencn.  (Hecorted  in  Oroke, Charles, 
134.) 

Trespass  for  breaking  close  and  pulling  down  a  gate.   Deft,  justi- 
fied on  ground  that,  the  gate  was  across  the  highway  and  was  a  nuisance. 
Plff.  answered  that  the  gate  was  lc  keep  out  cattle  and  the  public  bould 
not  open  it  without  trouble  when  wishing  to  pass.   HELD,  that  the  erect- 
ing of  a  gate  across  the  highway,  though  anyone  may  open  it,  is  a  nuisance 
and  as  such  may  be  removed  by  any  person.   Judgm-ent  for  deft. 

This  case  would  be  an  authority  for  allowing  uninterested  people  to 
abate  a  public  nuisance.  i^or  judge  decided  that  every  person  could  re- 
move.  Today  only  those  whose  rights  are  invaded  can  abate  a  nuisance. 

If  the  party  against,  whom  the  action  is  brought  created  the  nuisance, 
notice  is  not  necessary.   But  if  a  third  party  created  it,  notice  is  nec- 
essary.  In  practice,  to  be  safe,  notice  should  always  be  given.   The  ob 
j8ct  of  notice  is  that  the  owner  oiay  abate  the  nuisance  himself  and  save 
h 1 ?  Droper ty .   70  L . T . n . s . 275 . 

JOM^^^  V.  WILLIAMS,  p.  185,  Pxchequer,  1848. 

Trespass  ouare  olausum  f regit.   Plea  that  deft,  lived  near  the  close 
in  question,  and  that  plff,  injuriously  permittee  large  quantities  of 
filth  to  remain  on  the  close,-  from  which  noxious  odors  came  to  deft's 
house;  that  deft,  entered  to  abate  the  nuisance.   HE^LD,  that  plea  is  ;bad, 
because  it,  does  net  stat,e  how  the  nuisance  came  there.   If  plff.  put  it 
there,  or,  by  neglecting  some  duty,  suffered  11  to  remain,  the  trespass 
of  deft,  without  notice  was  excusable.   But  If  the  nuisance  v/35  placed 


34.  I 

there  by  another  person,  then  notice  to  plff.  was  necessary;  in  order  to 
justify,  left,  should  have  proved  that  it  was  one  of  the  tirst  two  cases. 
n:  Ordinarily  the  person  who  creates  a  nuisance  is  not  allowed  to  com- 
plain of  the  trespass  of  one  who  abates,  without  notice.  If  plff.  cre- 
ates the  nuisance,  deft,  need  not  give  notice,-  this  is  the  general  rule. 
On  the  other  hand,  plf/.  is  entitled  to  nd>tice  if  he  is  the  alienee  only 
of  the  original  creator  cf  the  nuisance.  Immediate  danger  to  life  will 
justify  omission  of  notice. 

70  L.T.n. 3. 275;  plff.  and  deft,  owned  aajoining  l^nd.   Cn  plff's 
land  was  a  tree  which  overhung  deft's  land.   Oould  deft,  cut  off  branches  < 
without  giving  notice?   Court  said  no.  {70   L.T.n.s.712,  decision  over- 
ruled very  recently.) 

BROWN  V.  PERKINS  and  .VIFE,  p.  187,  Mass.,  1858. 

Action  breaking  and  entering  plff's  shop  and  destroying  property. 
Deft,  justifies  on  ground  that  shop  was  used  for  sale  of  spiritcus  li- 
quors and  that  the  keeping  of  them  for  sale  was  a  nuisance  by  statute, 
which  he  had  a  right  to  abate.   Hi'l'D,  that  spirituous  liquors  are  not  of 
themselves  a  ccmmon  nuisance,-  but  by  statute  the  act  of  keeping  them  for 
sale  is  a  nuisance,-  and  must  be  abated  in  the  manner  prescribed  by  statute  '• 
and  not  by  forcible  destructio  n  by  a  private  citizen.   An  individual 
may  abate  a  common  nuisance  when  it  obstructs  his  individual  rights. 
Keeping  a  place  for  sale  cf  liquors  does  not  obstruct  his  rights  suffi- 
ciently to  authorize  him  to  destroy  the  liquor.   He  must  seek  the  remedy 
provided  by  statute. 

This  is  a  case  cf  great  importance.   Look  it  up  in  bock  and  read 
with  great  care  the  very  able  argument  cf  plff's  counsel. 

A  statute  creating  a  right  often  states  the  way  in  which  it  can  be 
used  or  secured,  and  then  that  way  is  exclusive  of  all  others.   A  "nui- 
sance cBn  only  be  abated  by  those  persons  who  are  affected  by  it.   A  stio* 
utory  nuisance  can  only  be  abated  in  the  way  prescribed  by  statute,  but 
if  the  statute  makes  no  provision.  It  is  to  be  abated  according  to  the 
principles  of  the  common  law. 

If  a  man  has  gone  on  the  lend  of  another  and  abated  a  nuisance,  he 
may  still  bring  suit.   Abatement  is  not  regarded  as  a  punishment,  but  as 
a  protection  for  the  injured  party.   Instead  cf  civil  suit,  there  may  be 
a  public  indictment.   Cooley  2nd  ".d.  p.  48  and  52. 

ERILL  v.  FmilH,   p.  191,  New  York.  1840. 

Trespass  for  killing  a  dog.   Flea,  that  the  dog  came  day  and  night 
on  the  premises  of  deft,  and  snarled  and  howled  to  the  great  disturbance 
of  his  family;  that  plff.  knew  of  this  and  wilfully  allowed  it  to  go  on; 
that  the  only  way  for  deft,  to  abate  the  nuisance  was  to  kill  the  dog. 
Demurrer.   H5LD,  that  the  matter  set  forth  in  plea  constituted  a  private 
nuisance  to  deft.,  which  he  was  justified  in  using  all  reasonable  means  to 
rciiove.   No  reasonable  means  could  remiove  it  short  of  killing  the  doe. 
Hence  this  was  justifiable. 

Suppose  a  man  went  on  another's  land  and  barked  like  a  dog,  would 
the  o'/.ner  of  land  have  a  right  to  shoot  him?   No.   53  N.H.  406.   The 


35. 


ir.an  would  be  a  nuisance,  but,  a  nuisi:nce  can  be  abated  only  to  the  extent 
that  it  does  injury,  anything  beyond  that  renders  the  abater  a  trespasser. 
Innocent  third  persons  must  not  be  in.iured.   Olerk  &   Lindsell  113;  Pol- 
lock Snd  ■'d.  363-364. 

There  are  two  kinds  of  nuisinces,  private  and  public.   A  private 
nuisance  niay  be  abated  by  any  one  that  is  legally  damaged  by  it;  that  is, 
by  any  one  who  could  bring  an  action  against  the  maintainer  ol  the  nui- 
sance; a  public  nuisance  can  be  abated  by  any  one  whose  right  of  conimon 
use  is  affected  by  the  nuisance.   A  right  of  a;:tion  against  the  maintain- 
er  of  the  public  nuisance  is  not  necessary  to  give  a  person  affected  by  it 
a  right  to  abate  it.   If  one  has  one  occasion  to  use  the  comnion  right,  he 
T2V  abate  a  public  nuisance  affecting  said  use. 

Vere  apprehension  of  injury  is  not  enough  to  justify  an  abating. 

A  man  cannot  tear  down  a  building  in  process  of  construction,  but  can 
cut  off  eaves  overhanging  where  rain  will  do  damage,  even  before  the  rain 

falls. 

A  man  has  a  right  to  go  on  another's  lana  to  aoate  a  nuisance  if  he 
has  a  right  of  action  against  the  niaintainer  of  it.   One  cannot  apply 
fores  to  the  person  to  abate  a  nuisance:  Oooley  2nd  td.  p.  49;  Glerk  5 
Lindsell  p.  149;  because  it  'rt'ould  be  a  breach  of  the  peace. 

If  a  person  n^.aintaining  a  nuisance  ordered  the  abater  to  retire  when 
he  caxe  on  his  land,  he  would  have  to  do  so.   if  attacked  hoviever ,   the 
abater  could  probably  defend  himself.   3errett  on  Nuisances  p.  4  gives  a 
list  of  acts  which  are  neither  public  nor  private  nuisances,-  acts  tending 
to  degrade  public  n:orals,  as  indecent  exposure,  etc. 

SPJCTION  VI.  (continued). 

(i)  ^Miscellaneous  'I'xcuses.) 

31LBF.RT  v.  STON'Fi,  p.  194.  King's  Bench,  1641. 

TRESPASS  TOR  BRiiAKlNG  HOUSS";  AND  3L0S!!,.   Deft.,  pleaded  that  twelve 
armed  men  by  threats  forced  hirr  to  go  with  them  and  enter  the  house  and 
close.   Demurrer.   H^JLC,  that  olea  is  bad.   One  cannot  justify  a  tres- 
pass UDon  another  for  fear, 

Con:pare  this  case  with  Smith  v.  Stone,  p.  42.   Defence  good  there 
because  deft,  was  carried  on  plff's  land  by  irresistible  force.   Here  he 
had  a  choice  between  being  hurt  himself  and  hurting  another,  and  he  chose 
to  hurt  anotner.   He  had  a  choice  and  exercised  it,  in  the  other  case  he 
had  no  choice. 

It  is  hard  to  reconcile  this  case  with  Piggott  on  torts  3S:  "Neces- 
sity for  preservation  of  life  is  a  good  plea  in  trespass."   Probably  the 
reason  for  the  distinction  between  such  a  case  snd  Gilbert  v.  Stone  is 
that  in  the  former  a  person  acts  purely  instinctively  and  without  the  ex- 
ercise of  his  reason.   But  even  then  he  ought  to  be  liable  according 
Lo  the  authorities.   :ierk  &   Lindsell  S,  Oooley  VP.l . 

TAYLOR  V.  '^^HITeHKAD,.  p.  194,  King's  Bench,  1781. 

Trespass  for  breaking  and  entering  close.   Flea  that  the  close  ad- 
joining a  lane  of  plff's  over  which  deft,  had  right  of  way  by  prescription 
and  that  lane  was  overflowed  so  th-t  deft,  nece'ssarily  entered  the  close. 


H.L   ,.  ■.  .a.  IS  no  justiricaticn.   Grant  of  a  precise,  specific  way 
H^t'norinciud-  oranl  of  way  over  land  anywhere,  nor  does  it  iir.piy  prorr.- 
1"  ot^rantor  to  keep  way  passable.   It  is  net  like  the  case  of  highways 
\here  the  general  good  conies  into  consideration 
^   Distinction  between  Taylor  v.  Whitehead  and;  Ca.poell  v-  -o  oi 
coWse  lies  in  fact  that  in  one  case  we  have  a  private  .ay,  in  the  oth.r 
a  public  way. 

U   UeTostruction  were  so  great  that  it  would  take  a  long  ti.e  to 
remove  it.  taking  it  down,  would  not  be  necessary.   One  could  .0  on  anotn 

ar's  I'^nd  in  that  case.  _ 

This  case  is  also  reported  1  Gray's  Oases  on  Property  ^.rA . 

OAWFBFLL  v.  Race,  p.  19S,  Mass.  1.B51. 

•Trespassing  for  breaking  and  entering  close.   Oeft.  pleaded  necebhi- 
tv  resulting  fron  i.passable  state  of  highways.   Judge  ruled  that  this 
-constituted  no  defence.   Verdict  for  clff/   Exceptions,   HKI.D.  t.  at 
rn^lish  rule  holds  in  this  country,  that  a  person  rr.ay  trespass  on  ad.ioin- 
ing  land  when  highway  is  impassable.   Public  convenience  and  necessity 
are  paraiP.ount,  to  private  right.   The  right  can  be  exercised  only  m  case 
cf  necessity.   Exceptions  sustained. 

GL^'VKR  v.  HYND"^  and  OTH'^;BS,- Coir.rr.on  Bench,- 1674. 
•Trespass  assault  and  battery.   A  curate  was  performing  funeral 
rites^over  a  body;  plff.  fr.aliciously  disturbed  hin-.   Ceft.  put  pltf.  out.. 
Argued  for  plff.  that  deft,  had  no  official  right  to  act  as  he  did. 
HKLH  •  that  when  persons  are  engaged  in  the  service  of  God  any  one  that 
disturbs  them  is  a  nuisince.  and  rtiay  be  removed  by  any  person- there  by  the 
same  rule  that  allows  a  man  to  abate  a  nuisance.   Judgment  for  deft. 

A.  statute  providing  ri'sans  of  punishing  an  act  does  not  fake  away  com-- 
mon  law  means  of  punishing. 

IRRL4ND  v.  ELLICT'T.  p.  ?01.  Iowa,  1S58. 

Assault  and  battery.   Judge  charged  that  in  civil  esses  abusive 
words  are  a  defence  to  an  action  of  assault.   Verdict  for  deft.   Appeal. 
HELD,  that  provoking  language  does  not  constitute  a  defence  in  a  civil 
action  any  more  than  in  a  crif.inal  action.   i^arthest  law  goes  is  to  allow 
great,  provocation  of  language  to  be  shown  in  irdtigation  of  damages. 

Judgment  reversed. 

Harsh  words  etc.  would  not  ii^itigate  the  damages  in  cases  of  actual 
physical  pain.  It  probably  would  in  cases  of  damages  for  humiliation, 
etc.   It  is  not  clear  on  authority. 

H'--=:  V.  e*>   .  0.  202,  Miss.  1883. 

Action  for  ssst^uiL  and  battery.'  Verdict  for  plff.  Appeal,  oob:it^i~ 
ing  for  error  the  fact  that  court  below  instructed  jury  that  "drunkeness 
was  an  element  aggravating  said  assault."  H^.iLD,  that  these  words  are 
wrong  in  criminal  actions.  In  civil  actions  the  point  has  not  been  ad- 
judicated except  with  regard  to  libel,  and  there  the  authorities  differ. 
.  But  in  this  case  the  charge  was  undoubtedly  correct.  ■'  drunken  man  ad- 
vanced on  a  woman,  brandishing  a  pistol  and  threatening  to  s.hoot.   His 


37. 
arunkenness  was  certainly  an  aggravation  oi"  the  injury.   Judgment  ai- 
t'irnied. 

decision  here  probably  corr^t.  though  generally  drunkeness  is  no 
aggravation.   1l  is  no  defence  Ordinarily  in  an  action  of  tort.   It  ii(ay 
be  where  special  intent  is  reQu^ired.   Bishop,  Mon-^ontract  Lav;  Pec.  511; 
M-arkby's  Kle.  of  Law,  Hec.  758;/ Figgott  on  Torts  pp.  "16-P17. 

H'KCf'ICN  Vl.  (continued).  • 

(.1)  Arrest  without  "'?.rrent,  p.  '-OB. 

Ancnynicus,  p.  ?06. 

In  many  cases,  private  individuals  and  officers  can  arrest  for  a  fe- 
lony past  or  present,  buL  never  for  a  past  ndsdeirieanor,  and  in  the  case 
of  present  misdemeanor,  only  for  breach  of  tjie  peace. 

This  is  the  coinir.on  law  rule.   In  every  state  a  statute  exists  ex- 
tending the  list  of  persons  who  ii;ay  be  arrested  by  an  officer  without  a 

warrant. 

If  a  private  person  ^rresLs  a  .i:.::i  -jnd.   inakeo  -  .xiJuiA^,  n--  .luou  prove 
that  a  felony  was  cOiTiritted,  and  that  he  reasonably  believed  the  n:an  ivas 
guilty.   Officer  only  has  to  prove  ^=-   ''■-^  orobabls  cause  to  believe  the 
felony  to  have  oeen  co-T,n;itted . 

'^^CTION  VI.  (continued), 

(k)  Justification  by  officer  under  judicial  process. 

:;HASE  v.  INSALLS,  p.  2?1,  Mass.,  1837. 

fort  against  deft,  as  deputy  sheriff  for  alleged  illegal  arrest  of 
plff.   Plff.  contends  that  the  warrant  was  defective,  as  the  ii:agislrate 
who  made  it  was  attorney  of  party  in  whose  favor  it  was  n;ade.   HELC,  that 
an  officer  is  not  liable  for  defect  in  his  precept,  provided  such  defect 
be  not  disclosed  by  the  precept  itself,  nor  known  to  the  officer. 

Legal  processes  ir.ust  os  issued  by  a  magistrate  having  legal  author- 
ity, must  conforn,  to  a  certain  fc-,  Tust  not  have  en  it^  f'-^c?  ^iiy  evidence 
thst  Ti.^j-istrate  had  no  power. 
INITION  3F  PROC   '. 

/■  Process  is  any  written  authority  emanating  fro:r  a  body  having  ap- 
parent legal  power  to  issue  it  ;;nd  purporting  to  authorize  a  ninisterial 
officer  to  do  some  act  which  if  dene  v/ithcut  legal  authority,  would  be  a 
tort. 

PKOPLF,  V.  y^'ARRKN,  p.  223,  New  Vork.  1342. 

Deft,  was  charged  in  lower  court  with  assault  ana  cattery  on  a  con- 
stable.  The  consti.ble  was  trying  to  arrest  him.   warrant  was  regular 
and  sufficient  upon  its  face.   Deft,  offered  evidence  to  prove  that  the 
officer  knew  the  inspectors  who  issued  the  warrant  had  no  jurisdiction. 
The  evidence  was  excluded.   Lixceptions.   HJiiLD,  that  as  the  warrant  was 
regular  on  its  face,  the  officer  was  authorized  to  iisake  the  arrest,  re- 
gardless of  whether  he  knew  that  the  inspector  had  no  jurisdiction. 

If  the  officer  knew  the  signature  was  forged,  he  could  not  protect 
himself.   This  case  .Takes  regularity  on  the  face  of  the  process  the  test 
of  whether  the  officer  is  protected.   S^S  3coley,  ?nd  5d.  546-7 
Here  the  paper  was  signed  by  the  proper  person. 


ON  V.        I'T,  r.    ,  New  York. 

I'resDass  de  bonis  asportatis.   Both  partiel^  vie/ve   constables,  and 
boll)  claiiried  possession  Lhroufih  writs  of  attachment.   tflt'f.  made  the 
first  levy,  and  for  subsequent  taldne  by  deft,  this  action  was  brought. 
The  attachriients  were  regular  on  theij'r  face,  but  as  a   matter  of  fact  were 
issued  by  authorities  not  having  jurisdiction.   HiiiLG,  that  while  such  an 
attachment  protects  the  officer  against  being  sued,  it  does  not  give  him 
3  title  sufficient  to  naaintain  actions  against  third  persons. 

4  Hun.  723  decides  the  other  way,^  that  priority  of  possession  is 
enough  to  enable  t.he  plff .  to  maintain  an  action. 

CAMPBELL  7.  SHERMAN,  p.  2?5,  Wisconsin.  1874. 

Action  against  deft,  as  sheriff  for  unlaivful  seizure  of  plff's  steann 
boat.   H^LD,:  that  the  court  which  issued  the  warrant  v.'as  clearly  exceed^ 
ing  its  jurisdiction  and  encroaching  upon  U.S.;  courts.    -ere  subject    "^ 
rratter  of  suit  is  within  the  jurisdiction  of  the  cour^,  yet  jurisdiction  > 
in  the  particular  case  is  wanting,  officer  is  certainly  to  be  protected  if 
he  executes  a  process  fair  upon  its  face.   But  where  the  process  itself 
shows  that  the  court  has  exceeded  its  jurisciction,  the  officer  is  not  to  > 
be  protected.   Ignorance  of  the  lav;  wiJl  not  excuse  him. 

This  is  certainly  hard  on  the  officer,  it  would  require  h-ini  to  look 
out  for  unconstitutional  statutes.   ''his  process  here  is  not  fair  on  its 
face,  for  it  is  not  issued  frofi:  a  court  having  jurisdiction.   This  case 
is  supported  by  weight  of  authority,  though  soiiie  cases  are  against  it. 
54  N.)^.-528. 

LASHU3  V.  MAiihiL^i,  p.  cci,  ^.'-dine,   18Sr. 

Action  of  trespass  against  deft,  as  depuiy  snsriii  to  recover  goods   '' 
attached  by  hini.   Verdict  for  deft.   !v*otion  to  set  aside  verdict,  be- 
cause in  the  suit  in  which  the  property  in  question  v/as  attached,  judgaient 
had  been  given  in  favor  of  owner.   HELD,  that  the  question  of  whether  an 
officer  is  a  trespasser  in  n;aking  an  attachirent  does  net  depend  upon  the 
result  of  the  suit  in  which  the  sttachirent  is  niade.   He  levies  en  the 
goods  for  such  judgment  as  plff.  may   recover  against  deft,  and  failure  of 
plff's  suit  does  not  n,ake  sheriff  a  trespasser  ab  initio. 

An  important  case.   A  writ  is  s   conniand  from  the  state  to  an  offi- 
cer.  Lawyers  get  them  froir.  the  courts,  in  blank,  signed  by  the  clerk  and  I 
sealed.   Lawyer  fills  one  out  and  gives  it  to  the  sheriff.   A  sheriff 
has  to  give  bonds  of  course  for  any  oniission  of  duty. 

There  are  tft'o  kinds  of  processes,' mesne  and  final.   A  v/rit  of  at- 
tachment or  arrest  is  niesne  process;  a  writ  of  execution  is  final  process. 

An  officer  is  not  resconsible  for  obeying  the  lav:,-  he  is  bound  to  do 
that.. 

A  sheriff  seizes  a  debtor's  goods  at  his  peril  unless  he  is  ordered 
to  take  a  certain  specific  chattel.   There  is  a  case  of  a  sheriff  seizing 
goods  of  a  woir^an  who  was  supposed  to  have  married  a  certain  man.   The 
goods  were  seized  as  the  goods  of  the  man.   This  would  have  been  legal  if 
the  marriage  was  legal.   The  marriage  was  illegil  and  the  woman  sued  the 
sheriff  for  seizing  her  goods,'  alleging  the  illegality  of  the  .-.arriage. 


89. 


:•-  recovered.   9  "onn.  1^0  at   146-3 
STArf.  V.  OOv^'N'^h  and  FULLER,  p.  230,  Vermont.  1S36. 
In^iotnient  for  cesistins  an  officer  in  the  execution  of  his  office. 
ueii\.   offered  to  show  that  the  officer,  under  an  attachinent  against  a 
thira\  party,  was  atteiTipting  to  seize  deft.'s  floods.   '-^.videncs  excluded. 
HyLO,  that  this  evidence  was  properly  rejected.   /n  cfficsr,  under  in- 
structii^ns  to  seize  propertv  is  not  bound  to  decide  all  cases  of  doubtful 
title  atvhis  own  hazard.    /.henever  the  question  of  property  is  so  far 
doubtful  Vn3t  creditor  and  officer  may  be  supposed  to  act  in  good  faith  in 
making  the  \attachirent,  the  owner  of  the  property  cannot  justify  resis- 
tance, but  must  yield  the  possession  and  resort  to  his  remedy  by  action. 

Resistance  to  officer  is  not  allowable.   The  reason  is  that  it  is  a 
breach  of  the  peace.   One  is  sure  to  be  able  to  recover  from  the  sheriff 
en  his  bond.   The  sheriff  would  be  in  a  bad  position,  if  a  man  could  re- 
sist him.   He  has  a  hard  enough  tifre  as  it  is  on  account  of  his  liabilit.v 
for  mistake  on  either  side. 

OOMMON^SALTH  v,  KENNARD  and  CTHSRS,  p.  2cl,  f^ ass..  1829. 

Question  whether  if  an  officer  have  an  execution  against  one  person 
and  he  attempts  by  mistake  to  take  the  goods  of  another,  can  that  person 
use  force  to  defend  his  property.   .^.ourt  said  that  a  iiian  may  use  force  to 
defend  his  person  or  property  against  others,'  not  officers,  and  that  a 
precept  against  A,  is  void  against  3,  and  an  officer  armed  with  a  void 
precept  is  no  officer  as  to  that  party,-  and  a  person  is  justified  in  re- 
sisting the  attachment. 

Property  may  be  seized  by  the  sheriff  under  a  variety  of  writs. 
ihey  are  of  two  classes,  (1)  Those  specifying  the  article  to  be  seized,  as 
in  replevin,  sequestration  in  chancery,  or  admiralty  process. 
Here  the  sheriff  seizing  these  goods  has  the  full  protection  of  the  law. 
(2)  '''.'here  the  officer  is  directed  tc  levy  on  enough  to  satisfy  the  piff's 
demand.   Here  the  sheriff  must  find  if  it  is  the  property  of  deft.,  and 
whether  11  is  seizable  under  the  writ,  and  must  find  enough  tc  satisfy 
plff.,-  if  deft,  has  enough.   here  if  the  sheriff  errs  in  judgment,-  the 
court  can  afford  him  no  protection  as  against  the  injured  parties. 

OOMMONWE.ALTt]  v.  CBOTT  and  OTtifcRS,  p.  234.'  Mass.,  3865. 

Indictment  for  a  riot  for  resisting  officer.   An  officer  attempted 
to  arrest  one  of  the  defts.  on  a  warrant  which  gave  no  name  or  description 
by  which  latter  could  be  identified.   He  resisted  forcibly.   HELD,  that 
such  a  warrant  is  certainly  void.   The  officer  had  no  right  to  aake  the 
arrest,  and  was  a  trespasser.   Deft.-  had  a  right  to  resist,  using  no 
more  force  than  was  necessary.   Any  third  party  may  lawfully  interfere' 
to  prevent  an  arrest  under  a  void  warrant. 

If  name  is  given  in  warrant  and  officer  arrests  another,  he  is  strict 
ly  liable.   If  mere  description  is  given  and  officer  arrests  one  who  an- 
swers to  it  but  is  not  the  party,  it  has  not  been  decided  whether  officer 
is  liable. 

POOLER  V.  Rli:?;D,  p.  235.;.  Meine.  1882. 

Trespass  for  an  alleged  illegal  arrest.   Deft,  justifies  arrest  as 
constable  with  legal  mittimus  therefor. 


40. 
After  elecLicn  as  constable  he  had  accepted  the  office  of  justice  of  the 
i,.,3>.      ,  Lhat  this  (i;ust  be  taken  as  a  surrender  of  office  of  con- 
stable.  He  wa.^'  still  an  officer  de  facto  however,  and  while  acting  as 
such,  his  act.s  ,'AOuld  be  valid  as  between  third  parties.   But  when  he  is  s 
Darty  hiu.self  and  justifies  his  acts  as  such  officer,  he  nsust  show  a  lo- 
fcial  title  to  the  office. 

Point,  discussed  thoroughly  in  54  M.H.  13  and  38  Conn.  t48. 

An  officer  de  facto  is  one  who  is  not  really  an  officer  but,  who  has 
the  reputatyion  of  being  one  and  is  in  the  habit,  of  acting  as  one  under  the 
color  of  authority.    sheriff  is  justified  in  acting  on  the  process  of  a 
de  facto  officer. 

3ALLJARD  V.  LAXTON.  p.  236.  Queen's  Bench,  1852,<'' 

A  wa'rrant  had  been  issued  to  the  constable  and  all  her  Majesty's 
officers  of  a  certain  county.   One  of  the  latter,  whojiad  had  the  war- 
rant in  his  possession,  but  who  did  not  have  it  at.  thefli.iie,  arrested 
oalliard.   Latter  resisted  and  was  indicted  for  assauft.  in  lower  court. 
Question  of  illegality  of  arrest,   HF^LD,  that,  the  warrant,  would  have  had 
to  be  produced  if  required,  or  else  arrest,  would  be  illegal  anyway.   That 
being'  so,  officer  was  bound  to  have  it  with  hitr-  to  be  produced  if  required 
and  not  having,  could  not  .^ake  a  legal  arrest. 

Can  lay  hands  on  the  party  to  be  arrested,  if  you  are  a  known  offi- 
cer, before  you  show  your  warrant.   '''arrant  n:ust  be  in  officer's  posses- 
sion at  the  time  of  arrest;  he  niust  have  a  writ  good  on  the  face  of  it, 
must  follow  the  directions  of  the  process.   He  must  show  hiirself  an  of- 
ficer de  jure,  in  a  suit  against  himself. 

When  an  officer  has  a  good  process,  he  can  attach  the  goods  of  the 
proper  person  in  a  pending  suit.   The  result  of  the  suit  n^akes  no  differ- 
ence.  The  owner  cannot  resist  attachnient  of  his  goods,  but  rray  the  ar- 
rest of  his  person. 

The  best,  discussion  of  justification  under  judicial  process  is  Ccoley 
on  Torts,  2nd  fid.  about  539,  1^  or  15  pages,  especially  546. 

.in  officer  cannot  justify  under  a  process,  if  issued  withoutthe  jur- 
isdiction, and  that  is  apparent  on  its  face,  and  it  is  no  defence,  if  the 
process  is  in  truth  illegal,  unless  it  is  due  to  facts  beyond  his  official 
knowledge. 

'/:here  t.he  officer  is  himself  a  party  to  a  suit,  he  must  show  a  right 
de  jure.   -vhere  others  dispute  over  hi=  vi^r^i   as  an  officer,  it  is  suf- 
ficient to  show  hiii'self  such  de  facto. 

hen  the  ownership  of  property  is  doubtful  and  creditor  acts  in  good 
faith,  the  owner  is  not  justified  in  using  force  to  prevent  attachroent. 

Chapter  11, 

Disseisin  and  Conversion, 

(a)  Nonfeasance, 

Apparently  there  are  eight  essential  allegations  in  the  did  form  of 
declaration  in  trover;  (1)  Plff's  property;  (•-)  Piff's  casually  losing 
it;  fS)  Deft's  getting  possession  by  finding;  (4)  Deft's  knowledge 
that  it  was  plff's  property;  (5)  Ceft's  intention  to  defraud  plff.  of 


41. 
nis  property;  (6)  llii's  aeiiiana  for  it;  (7)   .bit's  rjiusal;  (8) 
Deft's  converting  and  disposing  of  it  to  his  own  use.   Later  on  several 
of  these  became  as  we  shall  se  unnecessary. 

At  con;ir,oa  law  there  were  two  forms  of  action  to  recover  a  specific 
chattel,  namely,  replevin  and  detinue.   There  were  three  foriris  of  action 
to  recover  damages,  viz:  trespass,  case  and  trover.   Case  is  the  same  as 
trespass  on  the  case.   In  1285  trespass  was  the  only  form  of  action.   To 
if  ford  a  remedy,  one  had  to  find  a  writ  which  exactly  described  the  thing 
cOinplained  of.   Often  justice  failed  because  no  writ  could  be  had.   The 
statute  of  /-estminster  11  was  passed.  Chapter  ?4  of  which  provided  that  if 
no  itrit  could  be  found,  the  clerks  in  chancery  should  make  up  a  writ  and 
the  action  should  be  called  case.   Belles  on  important  !^;nglifeh  Statutes. 
Assumpsit  and  trover  were  originally  actions  on  the  case. 
Distinction  between  trespass  and  case. 

The  distinction  was  forireriy  very  ifi:portant.   It  is  not  so  impor- 
tant now.   If  deft's  act  was  a  direct  application  of  force,  and  diimage 
followed  immediately  in  point  of  time  the  doing  of  the  act,  then  trespass 
might,  be  brought  instead  of  case,  and  if  in  addition,  deft's  act  was  wil- 
ful or  intentional,  then  trespass  must,  be  brought  instead  of  case.   If 
deft's  act  was  not.  a  direct  appliC'.:tion  of  force,  or  if  damage  did  not 
follow  iiimediately  in  point  of  time,  then  the  remedy  must  be  case  rather 
than  trespass.   Now  as  to  the  middle  ground:  if  force  was  applied  not  in- 
tentionally but  by  negligence,  and  damage  followed  immediately,  the  better 
opinion  was  that  plff.  could  bring  either  trespass  or  case.   Baldwin  v. 
Favor,  S  N.H.  4S5,  sets  forth  the  distinction  both  briefly  and  clearly. 
Walker's  Am.  Law  593-8  puts  the  matter  somewhat  differently  from  Prof. 
Smith. 

TROV'''R  was  used  originally  only  In  cases  of  finding,  and  was  then  an  ac- 
tion en  the  case.   Its  use  has  been  extended  by  a  fiction  to  cases  other 
tlian  those  of  actual  finding. 

A'e  shall  now  consider  the  meaning  of  conversion  in  actions  of  trover. 
CONVERSION  has  different  meanings  in  common  law  and  equity.   To  decide 
whether  trover  lies  in  any  given  case,  you  had  better  decide  first  whether 
the  act  complained  of  is  a  tort,  and  secondly,  if  it  is,  whether  it  is  a 
conversion. 

TROV^JR  is  sometimes  the  only  remiedy  for  sn  alleged  legal  wrong. 
Sometimes  it  is  concurrent  with  other  re-nedies,  as  trespass,  replevin, 
etc.   And  sometimes  it  cannot  be  brought  at  all.   The  question  as  Lo 
whether  there  has  been  a  conversion  is  still  important  even  in  code  states 
In  cases  where  there  is  doubt  between  conversion  and  o   breach  of  contract, 
it  is  desirable  to  sue  for  conversion  wherever  that  is  possible,  as  the 
contract  may  be  illegal. 

!^UL3PAVE  v.  C3C'iN,  p.  o67,  Queen's  Bench.  1591. 

Action  of  trover  for  butter  which  deft,  kept  so  negligently  Luib  it 
became  of  little  value.   Cemurrer.   HSLD,  that  if  finder  uses  the  thing 
found,  it  is  conversion  and  he  is  answerable  in  trover,  but,  for  negli- 
gent keeping,  he  is  not  responsible  in  trover. 

Precise  point  was  whether  a  man  was  liable  in  trover  for  not  taking 


42. 
care  of  things  found.   Court  said  no,  as  he  was  not  bound  to  take  care  of 
things  found,  but  this  rule  is  doubted  now  by  some  a\ithorities.   But  de- 
cision is  correct,  as  there  was  no  conversion,  n  Mere  nonfeasance  is  not 
conversion. 
'-^OSS  v./ JOHNSON,  p.  267,  Kini:>'s  Bench,  177?. 

"rover  for  goods  belonging  to  plff.  which  came  into  possession  of 
iciL. .  a  wharfinger,  directed  to  plff.   They  were  lost  or  stolen.   Ond<e- 
xsnd  by  plff.  and  tender  of  wharfage,  deft,  did  not  deliver.   HPLD,  that 
trover  would  not  lie,  it  should  be  an  action  on  the  case.   in  order  to 
;iiaintain  trover,  there  must  be  an  injurious  conversion,  und|pr  which  head 
i   refusal  to  deliver  goods  does  not  come.   Nonsuit.      ; 

A'hat  slerrent  of  conversion  is  lacking  here?   Actual  using  of  goods 
as  owner,  doing  something,  instead  of  mere  nonfeasance.   There  is  a 
breach  of  contract  here  on  the  part  of  deft.,  but  a  mere  breach  of  con- 
tract is  not  conversion.   This  case  differs  from  preceding  one  in  that  in 
Mulgrave  v.  Ogden  there  ?/as  no  contract,  but  in  this  there  was.   Plff. 
could  have  sucessfuUy  brought  contract  or  tort.   But  if  tort,  the  form 
of  action  should  be  case. 

FARPAB  v.  ROLLINS,  p.  ?5B,  Vernsont,  1S34. 

Trover  for  a  sled.   Plff.  had  loaned  it  to  deft.   He  asked  latter 
to  return  the  sled  to  his  (plff's)  house,  where  he  got  it.   This  deft,  re- 
fused to  do,  but  he  ir.ade  no  objection  to  plff's  taking  the  sled.   HELD,, 
that  this  refusal  of  deft's  was  no  conversion,  but  at  most  only  a  breach 
f  contract.   A  refusal  to  give  up  the  sled  would  have  been  a  conversion,- 
but  there  was  none  such  here.   There  was  no  assertion  of  any  dominion 
over  it  by  deft,  inconsistent  with  plff's  right. 

Refusal  to  give  up  the  goods  of  another,  disputing  his  right  to  it, 
is  conversion,  but  mere  refusal  to  do  something  with  the  thing  without 
disputing  the  owner's  right  is  a  ruere  breach  of  contract  en'i  is  not  a 
conversion. 

THi^SIi;  THR^i;  CAS'iiS  show  that  mere  negligence,  mere  nonfeasance,  mere 
breach  of  contract  will  not  per  se  constitute  conversion. 

S>^;C'r'ION  11,  (continued.) 

(b)  Destruction,  or  Change  in  Nature  or  Cuaiity  of  a  Chattel. 
RICHARDSON  v.  ATKINSON.  Nisi  Prius,  17?8. 

They  held  that  the  drawing  out  part  of  the  vessel,  and  filling  it  up 
with  water,  was  a  conversion  of  all  the  liouor,  and  the  jury  gave  damages 
as  to  the  whole. 

If  any  essjntial  change  is  made  in  the  nature  or  quality  of  the 
chattel,  it  is  a  conversion.   8  Fenn.  State  294  allowed  trover  where  a 
tree  was  cut  down  on  another's  land  and  cut  into  sniall  wood  and  then  left 
on  the  land. 

S!i:CTION  11  (continued.) 

(c)  Asportation. 

BASSEf  v.  MAYMARD,.  p.  273,  Queen's  Bench,  1301. 
If  a  stranger  takes  my  chattels  out  of  my  possession,  I  can  bring 
trespass  or  trover  against  him  at  my  election. 

A  wrongful  taking  under  a  claim  of  right  is  a  conversion,  but  a  mere 


u 


43. 

wronj^iiui  L:-jr\ing  is  not  necessarily  a  conversion.   iior  is  a  wrongful  Lak- 
inc;  necessary  for  a  conversion.   The  wrong  may  be  entirely  subseouent  to 
the  securing  of  possession  by  deft. 
JOHNSON  V.  FARR,  p.  275.  New  Hampshire.  1S30. 

I'rover  for  last-blocks.   Deft,  as  sheriff  had  attached  them  on  a 
writ,  and  the  question  in  this  case  was  whether  he  had  exercised  such  do- 
minion over  theni  as  to  amount  to  a  conversion,  for  which  this  action 
would  lie.   HELD,  that  as  this  was  a  valid  attachment,  it  is  to  be  pre- 
suVied  that  deft,  took  possession  of  the  goods  (which  is  an  essential  ele- 
;!ien\  of  a  valid  attachment.)   Hence  plff.  must  have  been  deprived  of  his 
dominion  over  them,  and  that  is  enough  to  constitute  wrongful  conversion. 
Vhe  court  said  that  there  was  a  conversion,  by  reason  of  the  attach- 
ment b,y  the  sheriff,  as  it  prevented  the  owner  from  exercising  a  clear  do- 
minion; as  sheriff  claimed  exclusive  custody,  the  owner  could  not  have 
clear  possession,  to  do  as  he  wished.   It  was  a  deprivation  of  plff.,  if 
not  a  disposition  to  the  use  of  deft. 

To  assume  control  of  goods  and  prevent  the  owner  from  using  them 
amounts  to  a  conversion. 

BUSWh   V.  J^ILLRR.  p.  275/ Nisi  Prius,  1718. 

Flff.  and  deft,  were  porters  who  had  adjacent  cui;boards  in  a  hut 
on  the  wharf,  where  they  used  to  put  goods,  if  the  ship  were  not  ready, 
Plff.  placed  some  goods  of  A  so  that  deft,  could  not  get  to  his  cupboard 
without  removing  them.   He  did  remove  them  about  a  yard  toward  the  door, 
and  went  away  without  returning  them.   They  were  lost.   Plff.  brought 
trover  against  deft.   H^.LD,  that  there  was  no  conversion.   Teft.  had  a 
right  to  remove  the  goods  so  as  to  get  to  his  cupboard.   As  to  his  not 
returning  them,'  perhaps  trespass  might  be  brought,  but  clearly  there  was 
no  conversion. 

The  case  illustrates  the  principle  that  mere  nonfeasance  does  not 
amount  to  a  conversion.   .A  serious  question  might,  arise  as  to  whether  h. 
was  bound  to  put  the  goods  back  in  the  place  whence  he  took  them, 

FOR^nnK  v.  OCLLIN'^.  p._277.  Nisi  Prius,  1513. 

Trespass  for  value  of  a  block  of  stone.   Stone  had  been  placed  by 
plff.  on  land  adjoining  houses  of  his.   Ceft.  coming  into  posses- 
sion of  the  land,  refused  to  let  plff.  take  stone  away,  and  afterwards  re- 
moved it  himself  to  a  distance.   Argued' for  deft,,  that  he  had  a  right  to 
remove  it.  BXLj,   that  he  was  net  justified  in  removing  the  stone  to  a 
distance,  although  he  might  have  removed  it  to  an  adjacent  place.   He  was 
guilty  of  a  conversion. 

it  would  net  have  been  a  conversion  to  have  put  the  stone  by  the  read 
side,  as  that  would  merely  amount  to  excluding  plff.  from  deff's  land. 
If  he  carried  it  away  a  great  distance,  it  would  be  an  exercise  of  domin- 
ion over  the  stone. 

FOULD^S  V.  .aLLOUGHBY.  y.   <77 ,   Rxchequsr,  12-11. 

Trover  for  two  horses.   Deft,  was  manager  of  a  ferry.   Flff.  em- 
barked on  the  ferry  boat  with  the'  two  horses,  for  the  carriage  of  which  he 
had  paid.   He  behaved  improperly,  and  when  deft,  came  on  board  he  told 


44. 
him  hs  would  not  take  the  horses,  and  plt'f .  trust  take  then  shore.   This 
p]ff.  recused  tp  do.   So  deft,  led  them  ashore  and  turned  theni  loose  on 
the  highway.   I'hey  turned  up  at  a  hotel  a  little  later.   Plff.  detiianded 
them  and  was  told  he  could  have  them  by  piying  for  their  keep,  and  that 
they  v.'ould  be  sold  for  their  keep.   They  were  sold.   Plff.  brought  this 
sctiori.   Defence  was  that,  horses  were  put  ashore  to  induce  plff.  to  fol- 
low. ,  Judge  chyriied  tjiat  putting  theni  ashore  was  a  conversion  and  jury 
founa  dair.8.ge  for  plff.   Judgrrent  was  set  aside,  as  court  said  iTere  aspor- 
tation did  not  airicunt  to  a  conversion,  when  there  was  no  intention  of  mak- 
ing any  further  use  of  the  chattel.   If  t!;s  object  of  putting  the  horses 
on  shore  was  to  induce  plff.  to  follow,  there  was  no  exercise  of  any  do- 
minion over  the  horses  inconsistent  with  or  adverse  to  the  plff's.   To 
constitute  a  conversion  there  nust  be  some  use  or  some  intention  lo  use 
the  goods,  or  the  result  must  be  a  loss  or  destruction  of  the  goods. 
The  simple  act  of  rerr.oval  was  not  conversion.   Judgment  set  aside  on  the 
ground  of  a  misdirection. 

The  essential  point  of  the  case  is,  is  the  charge  to  the  jury  cor- 
rect, that  taking  the  horses  and  putting  them  on  the  shore  was  a  conver- 
sion.  Court  held  that  it  was  not  correct,  as  mere  fact  of  putting  them 
on  shore  was  not  a  conversion.   The  ferryman  made  no  claim  to  exercise 
any  dominion  over  the  horses.   Interference  with  the  owner's  possession 
was  only  momentary.   He  undertook  only  to  abridge  plff's  right  of  control 
at  one  place  and  in  one  direction.   He  set  up  no  right  of  property  in 
himself,  nor  did  he  attempt  lo  acquire  any.   He  did  not  dispute  plff's 
general  ownership. 

"fl  m.omentary      interference  with  owner's  control,  while  not  ais- 
puting  his  general  i-^-ni   of  ownership,  nor  changing  the  nature  cr  quality 
cf  the  chattel,'  does  not  amount  to  a  conversion."        .. ^., 

The  destruction  of  a  chattel  is  a  conversion. 

The  judge  might  have  charged  that  putting  the  horses  ashore  was  a 
conversion,  if  the  jury  found  (1),  if  horses  were  lost  or  destroyed, 
(2),  if  that  followed  as  a  natural  result  of  deft's  act;  (3),  if  a  reasona 
ble  man  would  have  foreseen  such  a  result;  (4),  and  if  deft,  did  foresee 
such  3  result  or  ought  to  have  foreseen  it. 

The  facts  of  the  case  make  out  a  tort  but  not  &  conversion. 

INTfilRF'iRENOE  -^ITH  RI3HT' OF  PROPERTY  is  a  conversion,  though  it  be 
but  slight".   To  make  interference  with  right  of  user  a  conversion,  the 
right  must  be  substantially  abridged. 

The  point  of  the  case  is  that  a  momentary  interference  wiLh  the  ow- 
ner's control  or  user,  while  not  disputing  his  general  right,  of  owner- 
ship, nor  setting  up  a  claim  to  any  special  property  in  deft.,  nor  chang- 
ing the  nature  or  quality  of  the  chattel,  does  not  amount  to  a  conversion. 

SECTION  11,  (continued.) 

(g)  V'iscellaneous  Acts  of  Dominion. 

K"'Y^O^TH  V.  HILL  and  WIFE.'  p.  342.  King's  Bench,  1820. 

I'rover  against  husband  and  wife  for  converting  a  bond  and  two  notes 
to  their  own  use.   Flea,  not  guilty.   Verdict  for  plff.   !/cLion  in  ar- 
rest of  judgment,  on  ground  that  a  married  wo.i:an  cannot  acquire  property. 


'lence  cannoL  be  suilLy  oi  conversion.   Hri,LD,  thai  it'  conversion  couid 
take  place  only  by  an  acquisition  of  oroperty,  this  would  be  a  stronj^  ob- 
jection.  But  this  is  not  so,  as  coriyersion  by  destruction,  for  instance, 
shows.   Essence  of  conversion  is  not  acquiring  of  property  by  deft.,  but 
deprivation  of  property  to  piff.   /ind  that  being  so,  after  verdict,  we 
are  bound  to  iTP.lv  that  it  v.'es  sucf?  a  conversion  as  ;vife  nnsht  be  ouiltv 

It  wa,s  true  then,  but  is  net'  now,  that  a  irarried  woman'cannot  acquire 
property  m  her  own  right. 

The  court  did  not  study  th^  declaration  as  carefully  on  the  inQtion 
In  arrest  of  judgment  as  they  would  have  on  a  demurrer.   Such  a  declara- 
tion held  bad  on  demurrer  in  15  Gray,'  535.   The  court  said  "in  trover 
the  foundation  of  the  action  is  not  the  acquisition  of  property  by  the 
defts.,  but.  the  deprivation  of  property  to  the  plffs." 

Here  the  niatter  came  up  on  motion  in  arrest  of  judgment,  where  court, 
i:  there  is  any  conceivable  state  of  facts  v.hich  could  support  the  ver- 
dict, will  hold  that  those  facts  were  proved. 

'/oirentsry  interference  ending  in  destruction  of  the  thing  aipounts  to 
a  conversion. 

Vere  asportation  is  not  conversion  unless  it  deprives  owner  of  ac- 
tual or  constructive  possession. 

Mere  asportation  -is  any  act  by  deft,  inconsistent  with  owner's  ac- 
tual or  constructive  possession. 

SECTION  11,  (continued.) 

(d^  defendant  a  Purchaser,  Pledgee,- or  Psilee  of  '■  ''rongful  Trans- 
feror. 

GALVIN  v.  BACON,  p.  ?S5.  Vaine,  18:^3. 

Psplevin  iOi-  a  horse."   Plff .  had  lent  it  to  one  Staples,  who  had 
sold  i',  wrongfully,  and  after  passing  thdrugh  two  or  three  hands  it  fi- 
nally .reached  deft,  ss  a  bona  fide  purchaser.   Plif.  made  no  deniand  on 
deft,  before  bringing  this  action.   Hence  deft,  contended  that  the  action 
could  not  be  niaintained.   B^LO,  that  if  a  party  is  rightfully  in  posses- 
sion of  property  belonging  to  another,  the  latter  must  deTand  it  before 
bringing  an  action;  but  if  the  taking  is  tortious,  no  deniand  is  necessary, 
'hoever  takes  a  thing  without  assent  of  owner  or  his  agent,  takes  it,  in 
the  eyes  of  the  law,  tortiously;  this  holds  a  bona  fide  purchaser  frcn:  one 
vvho  h'ad  no, right  to  sell,  and  against  him  therefore  an  action  can  be 
brought  without  derr.an:? . 

This  case,  though  :in  action  of  replevin,  would  be  an  unquestioned  au- 
thority in  actions  of  trover.   "Good  faith"  alone  is  never  a  source 
of  title,  though  it,  may  often  turn  the  scale  in  doubtful  cases.   Bacon 
obtained  no  title  by  the  successive  sales,  as  none  of  the  sellers  had  a 
title  ivhich  he  could  pass.   His  possession  was  tortious  because  the  ven- 
dor's possession  y;as  tortious,  and  the  act  of  purchase  was  a  wrongful  act 
inconsistent  with  the  owner's  title.   Case  is  stronger  still  against  the 
others,  as  they  had  not  cnlv  r.ii?---!-f^c;.-="i,  hiit.  h'^-i  transferred  the  property 
to  another. 

-30  1  Cushing  536;  B  Hill  348;  3  Harv.  Laiv  Rev.  ?8  34,  An  article 


46. 
uy  Proi' .  Ames  on  the  old  law,  en  this  general  subject, 

Ceft.  '.vould  have  been  liable  In  trover  without  demand.   Trover  could 
have  oeen  brought  against  all  or  any  of  the  four,  but  a  judgnient  and  sat- 
isfaction against  one  would  have  precluded  action  against  the  others. 

yc:0!.<BIF:  V.  DAVUlS,  p.  238,  King's  Bench,  1B05. 

Trover  for  tobacco.   Plff.,  a  tooacco  nierchant,  had  employed  one 
Joddan  as  broker  to  buy  sorrie  tobacco  for  hiin.   Oodd.^n  did  so,  buying  it 
in  hisowan'ime  while  it  was  in  the  king's  warehouse.   Then  he  pledged  it 
r.o  deft.,  who  was  ignorant  of  fact  that  it  belonged  to  piff.   Deft.  we., 
finally  inforaied  of  true  state  of  affars  and  a  demand  .Tads  upon  hitn,  but 
he  refused  to  give  up  the  gocis  until  paid  the  nioney  he  had  advanced  on 
theai.   HELD,  that  this  was  conversion.   The  assuming  to  one's  self  the 
property  and  right  of  disposing  of  another  man's  gcodsis  a  conversion,  and 
so  is  the  taking  by  assignment  from  another  who  has  no  right  to  dispose 
of  the  goods. 

Constructive  possession  is  sufficient  in  trover.   It  arises  when 
goods  ^re   in  a  ivarehcuse  and  are  transferred  by  delivery  of  an  order  or  a 
key . 

fn  case  of  a  pledge  the  bailee  has  the  right  to  sell  the  goods  if  he 
is  not  paid.   A  pledge  is  more  like  a  sale  than  an  ordinary  bailment,. 
Approached  more  to  Galvin  v.  Bacon  than  F'rome  v.  Dennis. 

raking  in  pledge  another's  goods  from  a  party  who  has  no  right  to 
pledge  them,  is  a  conversion.   Pledgee  takes  the  goods  and  claims  a  ti- 
tle against  all  the  world,  not  simply  against  bailor.   This  is  -;  the  er- 
ror of  Spackman  v.  Foster,  p.  ?90..   A  olaim  under  a  lien  which  jces  net 
exist,  is  a  conversion.  4  C!.B.n.s.?2c. 

4  3..B.n.s.22S  is  a  case  on  lien.   Fiff .  had  erected  a  building 
which  projected  unlawfully.   Authorities  directed  deft...  a  surveyor,  to 
demolish  it.   He  did  so  and  detained  the  materials  as  a  security  for  ex- 
penses of  taking  down  the  building,  in  the  bona  fide  belief  that  he  wa2 
entitled  to  do  so.   H.KLC,  to  be  conversion.   Arbitrator  found  that  plff. 
could  not  have  obtained  the  materials  without  paying  back  the  said  expense 
2c\ivi   said,.  "if«e  must  give  a  reasonable  construction  tc  the-  finding  of  ar- 
oitrator,"  in  answer  to  objection  that  intention-  to  claim  as  lien  had  net 
been  ccmmunicatsd  to  anybody. 

See  Clerk  &  Lindsell  on  Torts  159,  1S3,  13S.   "Factors  Acts"  .'.ouiu 
now  protect  a  pledgeee  under  :  similar  conditions.   Although  deft,  did 
not  have  actual  inmediate  possession,  he  did  have  an  order  which  would  at 
any  time  give  him  immediate  pcssession;  he  had  consLructivs  possession. 

L0RIN3  V.  MULCAHY,  p.  2d2,   j/ass.  18&>. 

[ort  for  conversion  of  goods  stolen  from  piff.  deposited  in  deit's 
nouse  with  his  knowledge,-  afterwards  taken  away  by  sime  persons  who  car- 
ried them  there.   HELD,  that  defL.  did  not  convert  the  goods  tc  his  c-vn 
use,  but  was  a  mere  depository.   It.  does  not  a  ipear  that  he  would  not 
have  restored  them  to  plff.  on  demand. 

Allowing  goods  to  be  brought  into  one's  house  and  taken  out  again  is 
a  miere  nonfeasance.   Deft,  did  not  affirmative  act,  ncr  was  it  shewn  that 
ne  intended  tc  do  anyth'^g  to  prevent  the  owner  from  recovering  his  proper- 


'-17. 

ty. 

A  use  of  soods  with  possessor's  permission  and  doing  nothing  to  ac- 
quli's  or  repudiate  owner's  title  ^is  not  conversion. 
"^"^:   V.  DENNIS.- p.  294,  nf:   Jersey.  1833. 
/   riii.  left  his  plow  on  a  tfvai   with  owner's  consent,  until  he  should 
cbnie  and  take  it  away.   Some  UyOnths  later  the  farm  passed  into  the  pos- 
$ession  of  one  Hibler,  plow  st/^U  bein^  there.   /\  little  later  deft,  bor- 
rowed the  plow  of  Hibler,  supposing  hiir.  to  be  the  owner,  and  after  using 
it  for  a  few  days,  returnea  it.   A  year  later  plff.  informed  deft,  that 
it  was  his  plow,,  demanded  pa/  for  it  and  the  return  of  it.   Deft,  not 
coirplyins,  plff.  brought  trover.   HSULC,  that  conductcf  deft,  was  not  a 
conversion  of  the  plow  as  he  received  it  for  temporary  use  only,  and  with- 
out any  claim  of  risht,  and  he  exercised  no  doirdnion  over  it  inconsistent 
'.vith  owner's  risht.   His  act  n:ay  have  been  trespass,  but  was  not  conver- 
sion. 

Deft,  took  property  and  used  it,  and  claimed  it  nerely  as  a  borrower, 
not  that-  he  had  any  idea  of  ever  acquiring  a  title  to  the  property,  or  de- 
nying the  owner's  right.   A'hen  he  returnee  it,  he  returned  it  not  to  the 
owner,  but  to  the  party  from  whom  he  got  it.  >'c   it  differs  froti;  the  case 
of  Youl  v,  Harbottle,  p.  804  of  this  volume  of  Oases,  where  the  true  ow- 
ner bailed  the  goods  and  they  were  given  up  to  a  third  party.   But  here 
in  returning  the  goods  to  the  bailor,  deft,  left  the  plow  in  the  same  sit- 
uation as  tit  was  when  he  obtained  it.   It  would  have  been  a  conversion 
had  the  true  owner  revesled  himself'  and  forbade  its  return  to  the  bailor. 

See  the  re.narks  in  note  p.  ?86.   The  case  is  near  the  line,  but  the 
decision  is  probably  correct. 

SaCTION  11,  (continued), 
(e)  Misfeasance  by  Bailee. 

PP^HAM  V.  ZOmi.   p.  ?f?,  Mass.,  1S75. 

Tcrt  for  negligence  in  the  use  of  a  horse  and  carriage  hired  by  deft, 
of  plff.  with  a  count  for  the  conversion  of  the  same.   Judge  charged  that 
if  deft,  hired  the  horse  to  drive  to  [.ynnfield  only,  and  in  violation  of 
that  went  beyond  Lynnfield,  it  was  a  conversion  and  deft,  was  liable  for 
any  damage,  from  whatever  cause  it  arose.   If  his  act  was  not  in  violation 
of  the  contract,  then  he  is  liable  only  for  negligence.   H'^LO,  that  this 
charge  was  correct. 

Under  the  old  forn-s  of  action,  you  had  lo  uriu;=.  trover  for  conver- 
sion and  case  for  negligence.   Tn  Mass.  the  action  is  all  one  action  for 
tort,  but  you  have  to  set  out  g  form  of  action  and  prove  what  Is  alleged. 

■phe  court  here  assumes  that  the  driving  beyond  the  stipulated  place 
is  a  conversion.   '^he  weight  of  authority  is  that  way.   The  damages  are 
the  value  at  /the  tu:e   cf  conversion  diminished  by    the  value  at  the  time 
of  returning  it  to  the  owner.   ;''.he  horse  is  entirely  at  driver's  risk 
from  time  of  conversion  until  tiiie  cf  return. 

Accepting  pay  for  the  extra  drive,  with  knowledge  of  the  circumstance 
is  a  waiver  of  the  co  version. 

'^his  case  shows  the  difference  between  damages  for  negligence  and 


conversion.   In  latter  cas^  if  n^vnor^  „  *• 

v.db.,  it  o-^ner  refuses  to  take  bac^ 


rss, 


^^ 


48. 

hs  can  recover  full  value,  according  to  weisht  of  authority. 

The/ decision  has  been  affirii'.ed  in  An^land.   25  N.H.  72  contains 
good  reasoning  in  support  of  tills  doctrine.   1  3ray's  Cases  327-8  contair 
an  argument  against  it.   60  fi/w.Rep.S21.  rejects  the  doctrine  of  the  case. 
It  is  conmented  upon  in  8  Harp.  Law  Rev.  ,;280. 

■/epriving  the  owner  of  t'he  use  is  a  better  expression  than  convert- 
ing ip  one's  ovm  use  in  deflhin^  the  word  conversion. 

■  A  conversion  rpay  arise  frofn  an  intentional  breach  of  contract;  Per- 
]]m  if.   Coney. 

'  SPCON'iR  v.  MANCHgT(i;R.  p.  299, ■  Mass.  1882. 

Heft,  had  hired  ;  horse  from  plff.  to  drive  from  Worcester  to  Clin- 
ton.  On  the  way  back  he  unintentionally  took  wrong  road,  and  when  ne 
discovered  his  mistake  he  tooJ<  what  he  considered  the  best  way  back  to 
Worcester.   Question  was,  was  this  conversion.   HELD,  that  it  was  not  a 
conversion,  ss  deft's  set  was  not  such  as  of  itself  to  iirply  an  assertion 
of  title  or  rieht  of  dominion  over  the  horse,  nor  was  there  any  evidence 
of  intention  on  this  part  to  assert  such  title  or  right.   A'hether  an  act 
like  this  amounts  to  conversion  depends  on  circuirstances  of  the  case  and 
intention  of  party. 

Valuable  case.   There  is  a  difference  between  this  case  and  Perhani  v, 
Coney,  p.-  29B.   In  F.  v.  C.  deft,  was  aware  that  for  the  time  being  he 
was  violating  the  contract.   In  S.  v.  V.  there  was  no  conscious  violation 
of  contract. 

/I?NT'^0RTH  V.  McDU^'RI^J,  p.  ^Oc,   Mew  Hampshire,  135? . 

Oeft.  had  hired  a  mare  of  plff.   Judge  charged  thiu  ii  deiL.  wil- 
fully and  intentioally  drove  the  .tare  at  such  a  rate  of  speed  as  to  en- 
danger her  life,  and  he  knew  the  danger  it  would  be  conversion;  but  it 
would  not  be,  if  the  driving  was  irsrely  negligent,  and  deft,  did  not  knov 
of  the  danger.      ,  that  these' instructions  were  correct.   Driving  be- 
yond the  appointed  place  is  conversion,  and  such  wilful  and  iiniitoderate 
driving  as  in  this  case  is  certainly  as  uiarked  an  assumption  of  ownership 
and  as  substantial  an  invasion  of  bailor's  right  of  property,  as  that  is. 
Further,  wilful  destruction  by  bailee  is  conversion,  and  the  bailee  here 
may   be^Jield  to  have  wilfuily  destroyed  the  rnare. 

The  case  is  to  be  defended,  if  at  all,  on  the  ground  of  conscious  vi- 
olation of  contract.   It  is  not  enough  to  drive  fast  in  ignorance  of  the 
danger  to  the  horse.   If  the  doctrine  of  Perhair-  v.  Coney  is  correct,,  this 
case  will  stand.   If  not,  it  is  doubtful.   The  c?^:?.  i^   -n-logcus  to  cas- 
es on  wilful  destruction. 

If  pay  is  accepted  on  the  return  of  the  horse,  the  ov/ner  knowing  that 
/he  has  been  driven  further  than  the  contract  called  for,  such  acceptance 
is  a  waiver  of  the  right  of  action.   In  case  the  contract  was  so  broken, 
Smith  thinks  that  the  owner  may   refuse  to  receive  the  horse  when  he  is 
brought  back  and  recover  for  his  conversion.  64  N.H.  98.  (Rvens  v.  Wason) 

In  64  N.H.  98,  a  fnan  hired  a  horse  to  drive  from  one  place  to  another 
and  directly  back.  On  the  way  back  he  stopped,  put  the  horse  in  a  stable 
and  had  him  fed.  "^he   stsble  took  fire  and  the  horse  was  burned.   It  was 


49. 
HELD,  not  a  conversion.   But  this  decision  seems  contra  to  the  princi- 
ples upon  which  Perharri  v.  Coney  and  Wentowrth  v.  VcDuffie  were  decided. 

Ordinarily  a  bailment  is  a  personal  trusL,  and  to  assign  it  is  a 
violation  of  the  trust  and  hence  a  conversion.   34  N.H.29.   In  some 
bailments  this  is  not  so;  there  it  is  no  violation  for  the  bailee  to  as- 
sign his  interest. 

YOUL  V.  H.Af?BOTTt.R,  Nisi  Prius,  1791,  p.80^  . 

Trover  for  goods  delivered  to  deft,  s  comnion  carrier.   Another  per- 
son claimed  the  goods,  and  deft,  under  a  mistake,  delivered  them  to  him. 
HiiiLD,  that  when  a  carrier  loses  goods  by  accident,  trover  will  not  lie 
against  him,  but,  when  he  delivers  them  to  a  third  person,  though  under  a 
mistake, ■  trover  will  lie. 

If  goods  are  lost  thrcu;^ri  ncnieasance  oi  csrriir,  action  oi  trover 
cannot  be  sustained. 

Compare  this  case  v/ith  Frcme  v.- Dennis,  p.  ?9^- .      There  deft,  before 
notice,  restored  goods  to  party  from  whom  he  got  them,  in  good  faith. 
In  Y.v.H,  deft,  gave  chatties  to  party  to  whom  he  was  not  entrusted  to 
give  them, 

See  note,  p.  -306. 

The  difference  between  accident  and  misdelivery  is  that  the  former  is 
nonfeasance  and  the  latter  an  act  of  an  active  agent. 

This  case  differs  from  Spoonsr  v.  Manchester,  as  it  comes  nearer  to 
a  sale  and  there  is  more  probability  of  loss  of  the  property  to  the  owner. 

Misfeasance  by  a  bailee  is  a  conversion;  breach  of  contract  if  in- 
tentional or  unnecessary  may  amount  to  such  a  misfeasance. 
-FCTION^  II,  (continued.) 
(f)  Defendant  acting -as  Agent  or  Intermediary. 

PA^KgR  and  ANOTH'^p  v.  CtC^IN,  p.  307.  King's  Bench,  17-?S. 

A  bankrufl  '.vant  ai-^ay  leaving' some  plate  with  his  wife.   She  deliv- 
ered it  to  a  servant  to  raise  money  on  it,   Servant  went  vyith  deft,  to  a 
banker's,  there  deft,  took  the  plate,  pawned  it  in  his  own  name  and  took 
the  money  back  to  bankrupt's  wife.   Trover  was  brought.   Jury  found  ver- 
dict for  ijleft.,'  as  he  acted  only  as  a  friend.   But  in  the  upper  court  it 
was  H^LD,  that  a  new  trial  should  be  granted  on  the  ground  of  its  being  an 
actual  conversion  by  deft.,  notwithstanding  he  did  not  apply  the  money  to 
his  own  use. 

Master  cannot  .justify  the  set  of  his  servant  by  ordering  him  to  do 
what  he  would  not  be  justified  in  doing  himself. 

Plffs.  were  probably  the  assignees  of  the  bankrupts.   The  defence 
'.•.'3s  that  he  acted  as  a  friend,  pawning  in  his  own  name.   This  was  a  de- 
privation of  property  to  -,-•  the  owner. 

Clerk  ^   Lindsell  p.  167  say  there  are  four  sorts  of  conversion: 
wrongful  taking;  wrongful  parting  /.'ith;  wrongful  retaining  and  wrongful 
destruction.   There  can  be  no  conversion  where  there  has  been  no  volunta- 
ry act,  30  goods  lost  or  destroyed  by  accident  are  not  converted. 

In  order  to  show  conversion  by  wrongful  retaining,-  you  must  show  de- 
3!8nd  and  refusal  and  deft,  must  have  had  the  goods  under  his  control  at 


50. 
Lh8  linic.   cut  refusal  to  deliver  is  only  evidence  of  a  conversion  and 
net  of  itself  conversion. 

HOLLTNS  V.  FPyJlgR'.  p.  ?11.  House  of  Lords,  1875. 

Trover"!   Appeal  from  Exchequer  Chamber.   Fowler  &  Co.  were  nierchant 
Hoilins  5'  Co.  brokers.   Fowler  ^  Co.  instructed  their  brokers,  V.essrs. 
Rew  to  sell  for  them  13  bales  of  cotton.   They  did  so,  one  Bayley  pur- 
chasing them,,  claiming  tp  be  acting  as  agent  for  one  Seddon,  payment  to  be 
within  10  days.   5  days  later  Bayley  offered  then:  to  Hoilins,  deft,  in 
original  action,  who,  having  an  order  from  Messrs.  Nicholls,  purchased 
then;  and  later  ordered  them  delivered  to  the  latter,  which  was  done. 
Fowler  5:  Co.  not,  having  received  payment  within  the  stipulated  10  days,  ap 
plied  to  Seddon  and  learned  that  Bayley 's  act  was  unauthorized.   Demand 
was  made  on  HoUihs  i  Co.  and  on  their  failure  to  comply,  this  action  was 
brought.   HELD,  that  whether  or  not  innocent  purchaser  is  to  be  regarded 
as  guilty  of  conversion  depends  on  whether  he  would  be  excused  for  what  he 
did  if  done  by  authority  of  person  in  possession,  when  that  person  was 
finder  or  bailee.   If  so,  then  bona  fide  ignorance  of  another's  litis 
would  excuse  hin-.   If  not,  in  the  majority  of  cases  he  would  not  be  ex- 
cused.  Applying  this  rule  we  find  that  the  deft,  was  guilty  of  conver- 
sion. 

THIS  IS  ONF  OF  THE  IMPORTANT- CASFS  ON  CONVfiJRJ^ION. 

It  was  not  a  sale  to  Seddon  as  Bayley  had  no  authority  and  it  was 
not  a  sale  to  Bayley  because  the  plff.  never  intended  to  deal  with  him 
personally.   1  H.  ^  C.  803,  and  1S5  Vass.  283. 

Had  Bayley  simply  pretended  to  be  worth  property  and  the  sale  been  tc 
him,  trover  would  not  be  n'aintainable  here;  but  in  this  case  there  was  no 
passage  of  title  from  Fowler.   Hol-lins  held  the  cotton  for  a  half  hour 
before  he  sold  it.   Hoilins  gave  a  delivery  order  for  it  and  it  was  car- 
ried by  Hoilins'  men  in  carts  to  the  station.   The  cotton  had  been  iiiade 
into  yarn  at  the  time  of  the  action.   Hoilins  claimed  that  they  acted  on- 
ly as  brokers  and  agents  for  their  principal.   The  jury  found  this  tc  be 
true.   The  court  erred  In  refusing  to  set  aside  the  verdict  as  against 
the  evidence.   But  the  Lords  reversed  the  decision  on  this  around  which 
was  unusual  for  them  to  do  in  such  a  case. 

Blackburn  discusses  the  case  on  the  assumption  that  Hoilins,  though 
only  agent,  did  acts  assuming  dominion  over  the  goods.   Sentence  near 
•iiiddle  of  p.  Pl*^  is  inportant  point  of  the  case. 

The  passage  near  the  middle  of  p.'  316  is  worth  committing  to  memory. 
i'he  test  there  suggested  will  solve  a  great  many  difficulties,  though  net 
all. 

Question  is,,  whether  defts.  should  be  held  liable  for  conversion  in 
this  case,  if  they  acted  only  as  agents.   (In  fact,  probably,-  they  were 
principals,  quoad  hoc.)   Cefts.  negotiated  the  sale.   Case  is  very  close 
to  the  line.   If  a  broker  simply  acts  as  broker,,  does  not  touch  the  prop- 
erty, but  simply  negotiates  the  sale,  he  is  not  liable  for  conversion. 
Here  defts.  knew  that  they  were  doing  what  purported  to  be  a  transfer  of 
title,  and  were  helping  tc  do  something  which  would  change  its  form.   See 


14B  Mass.  267,  as  to  liability  for  conversion  of  carrier  moving  goods. 
res  Clerk  ^  Lindsell  on  Torts,  p.  181, 

If  the  carrieir  knows  his  act  is  the  conipletion  of  a  sale,'  by  transfer 
of  possession,  he  /can  beheld  for  conversion,  otherwise  not. 

In  this  case/  the  Judges  of  ff.ngland  were  called  upon,  under  the  ol'l 
practice,  to  advibe  the  House  of  Lords,  who  were  not  bound  to  follow  the 
Judges'  opinion. 

nONgOLIDATED  GOMFANLv^  CURTIS,  p.  328.-0ueen's  Bench,  189. 

Prover  brought  by  grantees  under  a  bill  of  sale  of  furniture  against 
auctioneers  who  sold  the  sanse  by  order  of  grantor  in  ignorance  of  the  bilJ 
of  sale.   Auctioneer  had  sold  the  goods  by  rsQusst,  and  delivered  them  to 
purchasers.   H^;LD,  that  mere  sale  without  a  transfer  of  possession  would 
be  no  conversion.   Rut  where  auctioneer  having  goods  in  his  possession, 
delivers  then:  wrongfully,  thoug  innocently,  to  another,  he  certainly  does 
an  act  inconsistent  with  owner's  don:inion  over  and  property  in  the  goods, 
and  is  guilty  of  conversion. 

Auctioneers  are  liable  for  conversion  if  goods  are  sent  to  their 
rooms  by  one  having  no  right  to  then:,  and  they  sell  them  and  immediately 
turn  the  aioney  over  to  the  party  from  whons  they  are  received.   The  reason 
is  the  auctioneer  assists  in  passing  title.   Is  also  liable  if  he  goes  to 
a  man's  house,  as  by  the  course  of  business  the  goods  are  then  transferred 
Lo  the  auctioneer  and  can  only  be  delivered  on  his  receipt,  so  he  has  pos- 
session of  the  goods  with  a  lien  on  them.   ir'o  he  assists  in  the  transfer 
of  the  property.   The  weight  of  authority  is  overwhelmingly  in  favor  of 
holding  the  auctioneer.   158  I/ass.  357.   Agents  are  not  liable  if  they 
merely  take  part  in  the  negotiation,-  but  are  if  they  have  anything  to  do 
with  possession  and  delivery.   153  iMss.  857;  59  N. -A'. Rep, ^19.   Clerk  ^v 
Lindseil  133. •  Holmes  Com.  Law  p.  100. 

The  deft,  here  was  uierely  an  agent,-  out  he  did  deliver  the  goods 
through  his  se-rvant.   Note  testimony  of  witness  on  p.  n?'8.   The  histor- 
ical reason  for  the  rule  above  as  to  auctioneers  being  liable  for  the  con- 
version of  goods  sold  on  the  order  of  one  having  no  right  is  the  desire  ci 
the  con-mon  law  to  protect  property.   As  trade  and  the  transfer  of  proper- 
ty increase?,  this  rule  is  likely  to  yield  to  one  in  favor  of  facility 
and  safety  of  such  transfer.   Frof.  .^mith  would  oppose -a  sHutory  change 
of  this  rule,-  because  if  it  were  understood  that  good  fith  and  ignorance 
of  true  state  of  title  were  defence,  sham  defences  of  that  sort  would  not 
be  held  liable.   ?ee  Holnies  on  Common  Law  pp.  97  to  100. 
?PCTICN  II  fcontinued.) 
(s)  Miscellaneous  Acts  of  Dominion. 

TsArLCR  V.  HORRALL,  p.  345,  Indiana.  1S37. 

Trover  by  Hcrrall  against  Traylor,  Capehart  and  Caih.   Plea,  not 
J:;uilty.   Fitf.  had  put  his  corn  into  a  crib  which  he  had  hired  on  anoth- 
er man's  land.   "efts,  and  others  being  there,  Capehart  offered  the  corn 
at  cublic  sale,  Traylor  bid  it  off  at  the  auction.   Plff.  was  there  and 
forbade  anyone  to  sell  or  remiove  the  corn.   HELD,-  that  there  was  no  con- 
version, a'^  th-^r^  is  no  evidence  that  defts.  ever  had  possession  of  the 


52. 
coi-n.   For  anything  that  appears,  pll'f .  niav  always  have  continued  in  un- 
disturbed possession  and  exercised  all  the  rights  of  owner. 

It  is  common  to  say  that  a  purchse  and  sale  are  conversions,  and 
that  claiiT.  of  title  must  be  accoinpanied  by  an  act  involving  a  manual  in- 
terference with  the  goods.   A  mere  assertion  of  title  verbal iy  is  not 
2  conversion.   Purchase  alone  will  net  constitue  conversion;  taking  pos- 
session is  necessary.   Words  alone  will  not  constitufe  conversion,  though 

they  may  be  of  importance  to  characterize  the  act. 

If  parties  by  a  sale  like  this,  cast  a  doubt  upon  the  title  of  the 
true  owner  so  he  could  only  sell  the  goods  for  half  their  value,  he  has 
a  remedy  in  "slander  of  title,"  by  which  he  can  recover  his  actual  dama- 
ges, but  cannot  recover  for  full  value  for  conversion. 

Taking  a  mortgage  deed  on  another's  property  is  not  a  conversion  un- 
less deed  is  recorded. 

NP.LSON  v.  /•'HF;TyOF?,.p.  349,  So.  Clarolina,  1SA5. 

•  ction  on  the  case  to  recover  the  value  of  a  slave.   I'hree  counts, 
one  in  trover.   A  slave  belonging  to  plff.  ran  avvay.   Presented  himself 
as  a  free  irulatto  to  deft.,  who  was  then  travelling,  and  asked  him  to 
take  him  as-  servant.   Heft,  took  him  with  him  a   while  and  then  he  disap- 
peared.- Verdict  for  plff.   Motion  for  non-suit,  or  new  trial,   HELD,  . 
that  if  deft's  act  amounted  to  an  assertion  cf  rifht  as  owner,  he  was 
guilty  of  conversion.   Otherwise  not.   To  determine  this  it  must  be 
known  whether  or  nothe  knew  the  negro  to  be  a  slave,  whether  or  not  he 
knew  there  was  a  question  of  property.   To  determine  this  there  must  be 
a  new  trial. 

Here  mistake  was  whether  chattel  was  property  or  not.   Natural  pre- 
sumption is  that  a  horse,  etc.  is  property,  but  natural  presumption  is 
that  a  man  is  not  property. 

Ceft.  was  net  liable  unless  the  man  was  e  sl3ve.  '-o   a  new  trial 
was  ordered  in  order  to  determine  that  point. 

MI3H0LS  V.  NF.v^OM,  No,  Carolina.  T81S, 

Trover  for  wood  on  deft's  land.   -Judgment  had  been  obtained  against 
deft,  and  an  execution  was  levied  on  the  wood,  which  was  then  sold  to 
plff.  as  highest  bidder.   Plff.  proposed  to  deft,  that  he  be  allowed  to 
enter  and  cart  off  the  wood.   ^eft.  replied,  if  plff.  cane   on  his  land  he 
would  sue  him.   The  wood  remained  where  it  was  and  this  action  was 
brought.   HPLD,  that  after  deft's  prohibition  plff,  could  not  enter  law- 
fully and  peacsably   He  was  under  no  obligation  to  enter  and  incur  a 
lawsuit.   Deft's  act  of  refusal  was  clear  evidence  of  conversion. 

If  plff.-  had  a  right  to  enter  to  get  the  wood,  the  court  thonp'ht. 
that  there  was  no  conversion  unless  there  was  physicil  force 
used  to  prevent  it,  but  the  court  is  wrong.   Plff.  was  entitled  to  take 
the  de£t.  at  his  word.   Plff.  had  a  right  to  enter,  but  was  entitled  to 
take  deft's  refusal  and  to  bring  nis  action. 

Pome  of  the  court  said,:  plff.  had  no  right  to  enter  on  land,  (but 
this  is  wrong)  and  consequently  his  refusalto  give  it  up  was  a  conversion. 

Best  view  is  that  assuming  the  owner  of  wood  has  right  to  enter,  the 
:r,6re  refusal  to  permit  entry  is  not  a  conversion,  unless  the  jury  0ould 


IC 


53. 
and  did  t'ina  intent  of  aett.   tc  exercise  domin.i.on  over  goods  as  well  as 
land. 

If  Plff.   :i^.u  a  right  to  enter  air-i  i.aii.   raaiisLta  uiii;  iron:  uiiory,   it 
viouti  be  conversion  if  be  intended  to  resist  taking  the  goods,  and  not 
cereiv  tc  defend  his  l^nd.       33  Pao.  Rep.  77;  h  n.^'.^ex>.  60?. 

P^^IGLAMD  V.  OO'riq/;  p.  357.  Exchequer .  im. 

T'rpver  for  furniiure.   Flff.  was  hoide,r  cf  a  bill  cf  sale  over 
hcusehoi^d  furniture  of  a  tenant  of  one  of  deff's  houses.   Plff.  had 
right  to\take  the  fi^-niture  in  case  of  default  in  payn;ent  by  tenant. 
Tenant  haVing  defaulted ,  plff.  put  a  man  in  Dcssession,  and  later  sent 
two  men  witll  vans  to  remove  the  furniture.   It,  was  after  sunset.   Deft, 
was  there.',  stated  that  rent  was  due,  that  he  was  going  to  destrain  the 
next  day,  that  he  would  not  let  furniture  go.   And  he  stationed  a  police- 
man outside  to  prevent  rerroval.   Plff.  went  away,  leaving  a  man  in  pos- 
session.  HKriD,  to  be  no  conversion,  as  deft,  did  no  act  cf  interference, 
but  only  threatened.   '•I'ven  if  he  had  prevented  removal  forcibly,  it 
would  have  been  no  conversion,  for  he  was  not  in  possession  and  did  not 
convert  them  to  his  own  use.   He  would  merely  have  prevented  plff.  from 
using  them  in  a  particular  way.   In  order  to  have  been  guilty  of  conver- 
sion, he  must  have  altogether  deprived  plff.  from  use  of  goods. 

It  was  a  race  of  two  creditors. 

It  seems  as  if  plff.  had  a  right  to  take  aeii.   ai  his  wora,aiia  assum 
Li;at  deft,  would  have  used  force,  so  that  it  was  not  necessary  plff. 
should  actually  resort  to  force.   It  does  not  follow  that  if  you  can  not 
bring  trover,  you  cannot  bring  any  other  action.   Distress  had  to  be 
made  by  daylight.   See  3  Black.  Comm.  pp.  6  to  14. 

'■'hethsr  refusal  tc  permit  property  to  be  moved  will  amount  to  con- 
version must  depend  upon  the  uses  to  which  property  can  be  put;  sometimes 
said:  "There  must  be  a  substantial  deprivation  of  ail  beneficial  use,"  in 
order  to  be  conversion.   In  this  case  it  would  seem  as  if  deft,  virtually 
had  possession,  although  jury  found  that  he  had  not  manual  cossession. 
See  Bristol,  v.  Burt,  p. 354. 

Stationing  policeman  was  a  decidea  ici,  oi  iULcri-'erence  wiLn  plff's 
property.   An  important  question  is  whether  a  man's  right  of  user  is  sub- 
stantially taken  away. 

Deft's  acts  werenaturally  calculated  to  and  did  result  in  depriving 
the  plff.  of  his  property.   deft,  had  practical  control  cf  the  goods, 
if  you  look  at  the  substance  and  not  at  the  iiere  form  of  the  action. 

HIORT  v.  60TT,  p.  SSI,  Exchequer.  1374. 

frover  for  barley.   Plffs.  were  commission  merchants.   They  em- 
ployed one  Grimmett  as  their  broker.   In  consequence  of  a  telegram  from 
him  they  shipped  the  barley  in  question  tc  the.  railway  station  in  Birming- 
ham, and  sent  tc  deft,  an  invoice  for  the  barley  and  a  delivery  order 
which  made  barley  deliverable  tc  order  of  consignor  or  consignee.   Barley 
had  in  fact  never  been  ordered  by  deft.   Grim.mett  called  soon  after,  and 
said  it  was  a  mistake,  asked  deft,  to  indorse  the  order  so  that  he  (G) 
could  get  the  bi;rley.   Deft,  did  so;  3.  took  the  order,  got  the  bi.rley 
and  absconded.   Jury  found  that  deft,  acted  in  good  faith,  with  s  viev; 


< 


54. 
Lo  correct  an  error  and  set  barley  back  to  plf.'t'.   HFJLO,  that  there  was  a 
conversion  by  deft,  as  he  did  an  unauthorized  act  which  deprived  another 
of  his  property  permanently  or  for  an  indefinite  tins.   Tf  deft,  had 
ione  nothinsi  at  all,'  plff .  would  have  gotten  the  goods.   He  assumed  a 
jontrol  over  disposition  of  goods,  and  plff.  will  not  set  them.   Hence 
Lhere  was  conversion. 

The  barley  was  deliver:-ibie  to  the  craer  oi  either  the  consignor  or 
Lho  oonsignee,  so  it  was  not  necessary  to  endorse  the  order  at  all.   The 
goods  were  in  the  hands  of  the  railroad.   Grimniett  had  ordered  it  sent 
%Q  the  deft.   ^eft.  attempted  to  restore  the  goods  through  Grimmett,  but 
GViffiirett  was  not  plff's  agent  and  was  not  adopted  as  such  for  receiving 
back  the  goods.   Ceft.  here  acted  under  an  honest  mistake  with  intent  to 
benefit  the  true  owner,  but  if  deft,  had  done  nothing  at  all,  the  barley 
v.'ould  not  have  been  lost  to  the  plff.   Oeft.  was  net  in  actual  posses- 
sion, but  was  in  constructive  possession  which  is  sufficient  possession 
to  maintain  trover. 

StCTICN  II  f continued.) 

(h)  Deoiand  and  Refusal. 
BALDWIN  V.  ':OLi^L,_B.  865,  Nisi  Frius.  1734. 


I  rover.   A  crirpenter  had  been  working  tor  hire  in  the  queen's 
yard.   -Refused  to  go  any  rrore,-  whereupon  the  surveyor  of  the  work  would 
not  let  hiti!  have  his  tools.   Oemand  and  refusal  were  proved.   HELD,  that 
this  was  actual  conversion,  and  not  fnerely  evidence  of  it.   For,  detain- 
ing another's  goods  from  him  without  cause  Is  assuming  to  one's  self  the 
right  to  dispose  of  their. 

The  decision  is  correct,  but  the  reason  given  is  wrong.   Mere  de- 
mand and  refusal  will  not  give  a  judgnent  for  plff.,-  is  net,  of  itself, 
a  conversion,  but  is  r;erely  evidence  of  it.   I^'olt,"'.  V  ,  was  wrong  in  his 
reason. 

;R";m  v.  On^iN,  p.  372,.  Nisi  Frius,  1S11. 


Trover  for  timber  which  deft,  found  on  his  prendses.   Plff's  ser- 
vant had  put  it  there.   Plff.,  the  owner,  densanded  it  of  deft.   Latter 
said  he  would  yive  it  up  if  plff.  would  bring  any  one  to  prove  that  it  was 
his  property,  otherwise  not.   HSLD,  that  this  is  a  qualified  refusal 
and  no  evidence  of  conversion. 

The  qualification  niust  be  reasonable.   Not  every  qualif ict:tion  pre- 
vents a  refusal  from  being  evidence  of  conversion. 

ALfi^XANDiR  V.  30UTHi.Y,'  p.  373,  King's  Bench.  18J1. 

Trover  for  goods  which  deft.,  a  servant  for  an  insurance  company, 
had  in  his  custody  in  a  warehouss,  and  which  had  been  sived  from  a  fire, 
and  placed  in  the  warehouse,  by  the  compsny's  servants,   Flff.  deiranded 
his  goods,  deft,  said  he  could  not  deliver  their,  without  an  order  from  the 
conioany.   '^' L'?,  that  as  the  refusal  was  not  absolute  but  was  qualified  ir; 
g  reasonable  and  justifiable  way,  there  was  not  sufficient  evidence  of 
conversion. 

''ery  unsettled  question  -whether  a  servant  can  be  said  in  action  of 
trover  to  be  in  possession  of  his  rraster's  good:?,  so  as  to  be  liable  in 


55. 
trover.    At  present  day,  if  servant  did  what  might  be  called  an  act  of 
misfeasance  while  he  had  the  actual  custody  of  another's  goods,  the  fact 
that  he  vae  acting  under  his  master  would  not  exempt  him.    See  as  to 
possessiipn  i;:  cases  of  larceny  by  servant,  2  Bisb.  ^Jev.■  Crirr.  Law,  sec. 
S24  et  seq.    As  to  civil  liability  in  trover,  Clerk  <?•  Lindsell  on  Torts, 
17S,  1  B.*  S. ,  460. 

SMITH  V.  YOUNa,  p.  cVB,     ivisi  Prius,  180P. 

Trover  for  a  lease,  to  which  plff.  had  a  right.    On  deitand,  deft, 
said  he  would  not  deliver  it  up,  but  it  was  then  in  the  hands  of  his  at- 
torney, who  had  a  lien  on  it  for  a  sum  due  him.    HFLP,  that  intention 
alone  is  not  enough  to  constitute  conversion.    To  make  a  demand  end  re- 
fusal sufficient  evidence,  the  narty,  when  be  refuses,  must  have  it  in  his 
power  to  deliver  or  detain  the  article, 

Tt  seems  as  if  deft,  might  have  been  held  liable  for  parting  with 
the  property,  though  that  ground  was  apparently  not  urged.    V;ould  not 
giving  property  in  pledge  or  lien  amount  to  conversion?    Case  decides 
that  if  deft,  has  not  property  in  his  possession,  and  is  therefore  power- 
less to  give  it  up,  it  is  no  conversion.    See  L.R.  1891,  2    Q.B.f.eS,  tend- 
ing contra.    Referred  to  in  5  Harv.  Law  Rev.  34'^,  354  and  fi  Harv.  L.^Rev. 
42,    "Demand  and  i-efusal  are  never  necessary  as  evidence  of  conversion, 
except  when  the  other  acta  of  the  deft,  are  not  sufficient  to  prove  it. " 

9  Allen,  172.    Tt  is  often  desirable  to  have  your  client  osake  a  de- 
taand  when  you  think  it  is  doubtful  if  you  can  prove  the  acts  which  amount 
to  a  conversion.    Dsually  necessary  in  case."  of  bailment.    Presumption 
of  conversion  from  evidsnce  of  demand  and  qualified  refusal  may  be  justi- 
fied when  qualification  is  reasonable.    There  must  be  no  subsequent  un- 
reasonable delay  after  such  qualified  refusal,  e.g.,  servant  refusing  to 
deliver  without  order  of  master,  must  deliver  after  reasonable  delay  to 
get  order.    Tn  trover,  law  allovfs  plff.  to  elect  to  compel  deft,  to  pur- 
chase Chattel  as  of  the  fl-it,e  of  convEr-s  ion:  th:;L;  is  the  basis  of  this  ac- 
tion. 

OftRPENTFR  V.  VAMHATTAN  LIFE  INS.  CO.,  P.  '77,  New  York,  1880. 
Action  for  conversion  of  clpnts,  which  remained  on  deft's  premises  a  i: 
an  accommodation  to  plff.,  and  which  daft,  refused  to  deliver  on  demand  on 
one  Saturday,  but  told  plff.  on  Monday  he  might  have  them.  ■  This  suit 
was;  begun  Tuesday.    Judge  charged  that  plff.  was  entitled  to  recover  dif- 
ference in  market  value  on  Saturday  and  ?v!onday,    BFLD,  that  this  is  vcroni; 
There  v.-as  a  complete  conversion  snd  plff's  right  of  action  could  not  be 
destroyed  witnout  his  consent.    Heceint  of  the  goods  by  plff.  before  or 
after  action  is  commenced  goes  to  aitigate  the  darra^fes  and  no  further. 
Re  cannot  be  forced  to  receive  them  back. 

The  case  isone  of  controversy,  but  the  weight  of  authority  is  with 
this  case.    Bish.  Non-Contract  Law,  Sec.  "01. 

An  unaccented  offer  if    return  does  not  mitigate  daicages  in  trover. 
An  accepted  offer  of  return  does  reduce  the  damages,  by  the  difference  be- 
tween the  value  of  the  property  vhen  converted  and  the  value  ivhen  received 
back. 


As  to  damasJcs.   In  case  of  conversion  where  there  has  been  no  re- 
turn of  ^oods,  damascs  will  be  the  value  of  goods  with  interest.   Doubt 
as  to  when  value  is  to  be  assessed.   Three  theories;  1st,  highest  inter- 
niediats  value;  2nd,  hi.^hest  reached  by  cc^mnJodiLy  in  a  reasonable  time  af- 
ter notice  to  owner  and  opportunity  to  replace  it.   Srd,  at  ti.'iie  oi  cor.- 
version.   This  last,  Prof.  -■Tit>  favors.   It  is  supported  by  more  au- 
thority than  the  others. 

There  is  a  conflict  of  aut,hority  as  to  amount  of  damages  recoverable 
in  trover  when  deprivation  of  goods  entails  a  great  loss  beyond  their 
value.   Probably  no  more  damages  could  be  recovered  in  trover;  case  or 
trespass  should  be  brought.   Plff .  might  sometimes  be  allowed  to  show 
.  that  the  chattel  was  especially  valuable  under  the  circumstances. 
\         An  accepted  offer  to  return  goods  does  not  bar  action  of  trover.   It 
mitigates  dairiages.   Plff.  has  often  been  allowed  to  make  his  election  be- 
ifhen   special  diniages  for  loss  of  service  and  interest,  in  addition  of 
course  to  deterioration  in  value.   ?3  S.W.Rep.  484,  very  late  case. 
\Does  an  unaccepted  offer  to  return  affect  damages?   If  so,  the 
property  must  certainly  be  in  as  good  condition  as  it  was  when  taken. 
Bishofi's  Non-Con-Law  Sec.  401,  very  important  statement.  72   .'/aine  37?, 
opinion  of  ablest  .judge  in  this  part  of  the  country  on  results  of  unac- 
cepted tender.   See  note  on  p.  '?78. 

Declaration  oin  Trover. 

Only  two  allegations  are  now  essential  in  tiiost  jurisdictions.   1, 
plff's  property,  2,  deprivation  by  wrongful  act  of  deft.   Oeft.'s  knowl- 
edge as  to  plff's  title,  deff's  intention  to  defraud  plff.,  and  deft's  re- 
fusal to  deliver  on  demand,  all  or  any  of  them,  may  often  be  material  in 
order  to  prove  the  fact  of  conversion,  but  they  are  not  necessary  ele- 
ments of  the  definition  of  conversion,  nor  necessary  allegations  of  a  dec- 
laration in  trover.   See  the  188?  fule  of  court  in  Wilson,  Judicature 
Acts  5th  F'd.,  p.  673. 

Although  the  declaration  sets  forth  plff's  property,  nevertheless 
?il]  that  is  necessary  is  right  to  possession.   1  Gray's  Oases  on  Prop., 
356-9,  note. 

Example  of  reciaration  in  Tr'0\ier. 

"Plff.- has  suffered  dair.age  by  the  deft,  •.■■.rcnkiuiiy  a^privink  th: 
plif,  cf  tv:o  casks  of  oil"  (then  declaration  goes  on  requiring  manner  ci 
deprivation)  "by  refusing  to  give  them  up  on  demand,"  or  "throwing  them 
overboard  out  of  a  boat,"  specifying  where  the  boat  was.   It,  amounts  to 
this,  the  word  "converted"  is  dropped  and  word  "deprived"  is  used. 
As  to  Definition. 

"Individualize  the  term  (to  be  defined)  in  as  few  words  as  possible." 
'.<ethods  of  making  definitions. 

i.   "By  making  a  digest."   :' .  "Frame  a  general  proposition,  in- 
cluding such  elements,  and  such  cniy,  as  are  always  essential  to  conver- 
sion, and  excluding  all  those  slsnents  which  are  found  in  some  cases,  but 
are  not  essential  in  all  cases."   The  difficulty  is  that  such  a  defini- 
tion IS  too  broad,  and  the  terms  of  the  definition  need  defining.   this 
kind  Oi  definition  was  Invented  bv  ^ord  Macauley;  he  gave  a   general  defi- 


^7 
niLion,  and  then  t'ollowsa  it  by  illustrations.    .  "''inuinerate  all  the 
distinct  sDecitic  classes,  which  con.'e  under  the  head  of  conversion." 
The  diificulty  of  this  definition  is  its  orolixity.   See  7   Bishop  New 
Criminal  Law,  cec.  758.  note  2,  and  1  Bishop  on  Marriatie,  Livorce  and  Sep- 
araLion,  Sec.  12.   Include  first,  the  idea  of  deft's  voluntary  act,  ?nd, 
the  idea  of  deft's  possession.   See  Cooley  on  Torts,  2nd  ^Jd.,  p.  525. 
Innes  on  Forts,  sees.  23-5-3.   Piggott  on  Torts,  214,215.   Distinguish 
between  intention  to  act  and  intention  to  injure.   See  p.  381,  Aaies' 
Cases  on  Torts.   For  definitions  of  conversion,  see  Pollock  on  Torts, 
2nd  kng.  £d.  see  303.   Cooley  on  Torts,  'Vnd  M.,  p.  524.   Bigelow,  Eie- 
nients  of  Torts,  4t.h  fiid.  pp.  208,  218.   One  definition  is  "unauthorizea 
acts  of  one  in  possession  of  a  chattel,  which  constitute  a  (substantial) 
usurpation  of  the  owner's  rights."   Prof.  Ames'  definition  as  given  in 
■-.niar.  Law  Rev.^  p.  363  is  "Any  unauthorized  dealing  v;ith  the  goods  of 
another  by  one  in  possession,  whereby  the  nature  or  quality  cf  Ihs  goods 
is  essentially  altered,  or  by  which  one  having  the  right  to  the  possession 
is  deprived  of  all  substantial  use  of  the  goods,  permanently  or  temporari- 
ly."  Prof.  Smith's  definition  is  based  en  Prof.  Ames'  definition.'   Prof 
Smith  says  Conversion  consists  in  any  affirn;ative  unauthorized  dealing 
with  the  goods  of  another,  by  one  who  is  actually  or  constructively  in 
possession,  I'/hereby  any  one  of  three  things  happens.   ^'ither,  first,  the 
nature  or  quality  of  the  goods  is  essentially  altered,  cr  second,  the  per-  a 
son  having  a  right  to  the  possession  is  deprived  ,  of  all  substantial  use 
of  the  goods,  permanently  or  for  an  indefinite  tiii.e  (for  some  extended  pe- 
riod); third,  the  person  having  the  right  of  possession  is  deprived  of  all 
substantial  use  of.  the  goods  ten'porarily  or  even  momentarily  by  one  act- 
ing in  denial  of  the  owner's  (perfect)  title  to  the  goods. 

Both  Prof.  Ames'  definition  and  Prof.  Smith's  definition  are  iiade  en 
the  third  inethod  of  defining. 

On  the  general  subject,  cf  the  effect  c^  .,  judgment  in  trovT^i  ^ee  161 
Mass. ,  '!i72,s8nie.  case  in  27  North  'i'astern  Reporter  7-C.   t^.p  -^^se  is  con- 
!r:entei  upon  in  8  Harv.  Law  Rev.  173. 

v'hort  definition  cf  conversion  given  by  Prof,  Smith:  A  conversion 
is  any  unlawful  or  'flrcngful  dealing  with  the  chattel  of  another,  by  one 
who  is  actually  or  constructively  in  possession  of  it  by  which  (ij  an  es- 
sential change  is  worked  in  qqplity  cf  the  chattel;  (2)  the  owner's  right 
cf  user  is  substantially  abridged,  either  per:r:anently  cr  for  an  extended 
space  of  time,  cr  irorrsntarily  by  one  claiiTing  title. 

■Jus  tertii.   If  deft,  connects  himself  with  that  third  person  (whose 
title  superior  to  plff's  he  sets  up  as  defence)  he  is  juiified  the  san.: 
as  that  person  would  be;  but  as  to  where  he  does  not  so  connect  hi,iiself 
see  discussion  in  Clerk  5  Lindscll  on  Torts  184  to  198;  Dicey  en  Parties 
255-7;  7  Law  Ouar.  Rev.,  224  to  243;  the  latter  also  as  to  n.easure  c^  ' 
damages  in  a  suit  by  bailee  vs.  ;vrongdoer;  also  as  to  law  point  L.R.  1  Q. 
e.  -^22.  and  a  criticism  cf  the  last  case  in  Vol.  92  Law  Times,  196. 
'^urther  Note  en  Cainages. 

!n  case  of  a  conversion  where  there  is  no  return  or  the  property  and 


58. 
the  convertor  has  had  the  pr-operty  for  sodie  time,  damaaes  would  be  the 
veiue  at  the  time  of  conversion,  with  interest  on  the  same  since  that  tiire 
There  is  a  dispute  however  as  to  the  time  when  value  is  to  be  f injured,  in 
casq' of  an  article  whose  value  has  fluctuated.   '^'•■-  t 'i  -e  theories  on 
this  latter  point  have  already  been  given. 

/  In  the  case  of  a  man  who  has  tools  and  a  monopoly  of  some  trade,  and 
his  tools  are  taken  so  that  he  loses  his  business  for  say  two  inonths,  he 
oa/i  recover  only  the  actual  value  of  his  tools. 

After  an  action  of  trover  and  a  satisfaction  cf  a  judgment,  tjie  ti- 
tle to  the  chattel  converted  vests  in  the  converter  from  the  tinie  of  the 
conversion. 

In  trover  the  party  elects  to  choose  to  ccnipel  the  converLcr  to  pur- 
chase the  chattel.   Some  authorities  would  allov;  the  value  at  the  time  of 
conversion  to  be  increased  when  the  deprivation  of  the  plff.  entails  a 
special  loss  beyond  the  value  of  the  goods  converted. 

If  goods  are  returned,  acceptance  does  not  bar  the  action,  but  merely 
mitigates  the  daipages,  by  value  at  tim.e  of  return.   'hen  property  is  re- 
turned some  courts  have  ui lowed  election  between  special  damages  and  in- 
terest. 23  S.W.Rep.  484.   If  plff.  refuses  to  receive  chattel  back,  it 
does  not  bar  the  action.   Owner  does  not  ask  to  have  the  horse  back,  but 
to  compel  deft,  to  become  an  involuntary  purchaser.   72  Maine  c'?! ,   says 
that  if  goods  are  tendered  back  and  refused,  that  plff.  can  recover  full 
damages  as  otherwise  it  makes  him  dependant  upon  the  wrongdoer's  will. 

Replevin  is  barred  by  a  tender  =5nd  refusal.  11  Howard's  practice  17. 

Deft'  s  knowledge  as  to  plff's  title,  and  intention  to  defraud  and 
refusal  on  demand  may  often  be  material  and  even  vital,  as  matter  of  evi- 
dence to  prove  the  conversion,  but  are  not  necessary  to  the  definition 
of  conversion. 

Deft,  must  be  m  possession  of  the  chattel  to  maintain  trover. 
Plff.  must  have  a  possession,  or  right  of  possession.   The  man  who  has 
a  title  to  goods,  cannot  maintain  trover  unless  he  has  a  right  tc  an  imme- 
diate possession, 

A  mere  verbal  cisia  lo   i<ooj.s  ql   snobner  i^  net  suiiiCicnL  tc  ii.ake  t 
conversion.   See  p.  IS^ . 

Most  definitions  are  merely  more  general  questions.  1--  ^entral  Lav 
Journal  1^^-133. 

M'lON  I J  f  continued.) 
(i)   jxcusabie  Conversion. 

^T'£V'"'N?  V  '^L'  ■    18?*^ 

In  this  case  it  was  resolved,  that  if  a  man  finds  stray  cat.tle  in 
his  field,  he  is  not  bound  to  impound  them  or  retain  them  for  the  owner, 
but  may  drive  them  off  into  the  highway  without  being  guilty  of  a  conver- 
sion. 

drive  c'-.ttle  into  the  road. 


59. 

VOLUP;  Ji, 

Chapter  1,  Legal  Cause. 

Bsilii'fs  of  Fomney  t/'arsh  v.  Trinity  House. 

Action  for  nsfligence.   Declsrat.ion  alleged  ne.gligent  navigation  of 
a  ship  of  deft's.  by  their  servants,  whereby  it  was  wrecked  and  ran  foul 
of  and  injured  sea  wall  of  plff's.   Facts  were:  a  ship  of  def ts' ,  through 
negligence  of  captain,  struck  on  a  shoal  3/4  of  a  mile  fron;  tl;i.0  wall  in 
'\questicn.   It  '/-"as  blowing  hard,  crew  lost  control,  and  vesseil,  y.'as  driven 
kainst  the  wall,  doing  the  damage  coaiplained  of.   Contendec|  fdr  deft?.. 
thXt  their  negligence  was  not  proxifnate  cause  of  the  injgry.   H^iLD,  that 
negr^gence  of  defts.  to  render  theni  liable,  must  be  not  n;erely  on^,  of  the 
caused  of  the  injury,  but  the  proxin:ate  cause.   Tt  was  so  here.   Iirunedi- 
ate  result  of  the  negligence  was  to  put  their  boat  in  such  e  condition 
that  win^  must  nec^ 


--n'lv'  drive  it  direcllv  on  v.'?ll.   Judgment  for 


olffs.   \ 


In  th^se  cases  we  must  assume  son:e  wrongful  act  of  the  deft,  and  dair- 
age  to  the  Wff.  and  then  see  whether  the  act  is  the  legal  cause  of  the 
iatr.ages. 

*;ind  and  tide  carried  the  vessel  asainst  the  wall. 

-scon's  maxiiTi':  in  jure  causa  proxima,  non  reniota,  spectatur. 

This  must  be  construed  liberally,  and  not  literally,  else  it  will 
.mislead.  .It  would  see.T:  to  include  natural  elements  as  well  as  human 
antecedents,  and  so,  is  misleading.   Logicians  would  say,  with  J. S. Mill, 
"The  cause  of  an  event  is  the  sum  total  of  all  its  antecedents."   That 
of  course  would  bar  plff's  action  here,  for  plff.  v.'ould  h^v--  r-.c   ri^ht  l. 
pick  out  one  antecedent  and  declare  on  it  as  the  cause. 

In  this  case  the  judges  looked  for  the  nearest  wrongdoer,  but  the 
principle  of  the  case  is  that  causal  connection  between  the  tortious  act 
of  deft,  and  the  damage  is  not  necessarily  broken  by  the  mere  interven- 
tion of  ordinary  natural  forces.   This  point  was  also  ruled  in  50  Fed. 
Rep.  310.   This  was  a  case  where  a  telephone  company  had  a  right  Ic  put 
up  its  wires.   It  left  the  wires  across  the  street  a  few  feet  from  the 
c'rcund  for  several  weeks  so  that  people  passing  struck  it.    A  man  was 
injured  in  a  thunder  storm.   The  deft,  telephone  company  was  held  liable. 
Reven  on  Negligence  p.  73-4,  says  the  operation  of  natural  forces  is  the 
inevitable  result  of  huian  actions. 

VcDONALD  V.  ■  '^'   ,  p.  ?,  Mass.  1S67. 

Tort.   Flff.  was  riding  in  a   sleigh  in  Boston.   One  Baker  was  also 
out  riding.    Deft's  servant,  by  negligent  driving,  ran  into  Baker's 
sleigh,  smashed  it,  and  frightened  horse  so  that  he  ran  away,  ran  into 
plff.,  broke  his  sleigh,  hurt  his  horse  and  injured  him  severely.   "ci't. 
demurred,  on  ground  that  his  negligence  was  not  proximate  cause.   HIlLD, 
that  a  man  is  responsible  for  injury  resulting  from  his  negligence,  when 
it  is  a  natural  and  probable  consequence  of  the  negligence,  that  is,  when 
it  might  reasonably  have  been  anticipated.   Here  deft,  started  Baker's 
horse  by  his  negligence.   A  natural  and  probable  consequence  was  certain- 
ly the  injury  to  plff.   "emurrer  overruled. 


50. 

Sonie  result  ol  inis  {general  character  was  sure  to  ioilow. 

I'he  case  stands  for  the  point  that  causal  connection  is  not  necessa- 
rily brol\en  by  the  n:ere  intecvenlion  oI'  the  usual  and  natural  actions  of 
animals.  ^ 

Here  ^here  was  no  intervenint!  responsible  human  agency. 

SCOfT  y.  3H!?FHrs;j.  p.  8  13  Geo.  Ill,  2  ^m.  Blackstone,  892. 

Trespass  for  throwing  a  lighted  squib  against  plff.  whereby  his  eye 
was  put  ouL.   Facts:  deft,  threw  a  lighted  squib  into  the  market  house, 
where  there  w^s  a  large  crowd;  it  fell  on  the  gingerbread  stand  of  one 
Yates;  one  .Ullis  to  prevent  injury  to  hiniself  and  goods  of  Yates,  in- 
stantly threw  the  squib  across  the  nsarket  house,  where  it,  fell  upon  the 
stand  ot  one  Royal;  he  iniir.ed lately  threw  it  away,  it  h"t  the  plff,  and     i 
put  out  his  eye.   H^LC,  that  trespass  lies.   The  injury  was  the  natural  j 
ana  probable  consequence  of  deft's  act.   And  as  deff's  act  was  originally^ 
unlawful  he  is  responsible  for  resulting  daniage.   ^.'illis  and  Royal,  act- 
ing as  they  did  in  self  defence  and  on  the  spur  of  necessity,  cannot  be 
considered  as  free  agents  taking  blaase  off  deft.   Judgnient  for  plff, 

"fhis  case  is  known  as  the  squib  case,  and  is  one  of  the  (iiost  famous 
cases  in  law. 

r<or  immediate  and  direct  result  of  an  act.,  trespass  as  distinguished  * 
from  case  was  the  proper  remedy  at  this  time.  Blackstone, J. ,  thought  j 
that  no  immediate  injury  passed  from  the  deft,  to  the  plff.,  and  so  tres-  | 
pass  was  not  maintainable.  ' 

The  case  was  sent  up  either  for  the  court  to  look  at  the  facts  as 
jurors  to  see  whether  they  woula  find  for  pjff.  or  to  get  their  opinion 
as  to  whether  under  these  facts  a  jury  could  find  for  plff.  on  a  correct 
charge  as  to  the.  law  of  the  case. 

There  is  no  doubt  about  the  external  acts  in  the  case;  the  only 
thing  in  doubt  was  the  mental  state  of  the  actors,  whether  they  acted  in- 
stinctively or  as  reasoning  men,  whether  the  intermediaries  were  free  or 
compulsive  agents.  | 

The  opinion  of  in^j  (i.ajcrioy  bianiis  icr  the  point  that  causal  connec-  \ 
tion  is  not  necessarily  broken  by  the  intervention  of  the  instinctive  or 
irrespcnsiole  act  of  a  human  being  other  than  the  '''"r.  '^'-  -'■=^1. 

The  nearest  human  wrongdoer  was  the  deft. 

In  Laidlaw  v.  Sage,  SO  N.Y.>upp.493,  reported  also  in  SO  Hun.  550 
and  noticed  in  Harv.  Law  Fev.  January  1394  and  December  1894,-  p.  ?25,  the 
deft,  requested  tlve  court  to  charge  that  if  his  act  was  involuntary  or 
such  as  would  instinctively  result  from  a  sudden  and  irresistible  impulse 
in  the  presence' of  a  great  danger,  he  was  not  liablf, .    e  court  refused 
and  charged  that  the  liability  depended  on  whether  or  not  the  act  was  vol-j 
untary.   '-his  charge  -.vas  later  held  bad:  the  court  said  the  charge  should^ 
have  been  the  one  requested  by  deft.,  for  the  act  might  be  voluntary  and 
still  not  be  the  result  of  an  intention  based  on  reasoning.   An  instinc- 
tive act  may  be  voluntary,  though  not  the  intended  result  of  reasoning. 

In  the  squib  case  three  judges  thought  it  an  impulsive  and  instinc- 
tive act  on  the  part  of  the  intermediaries.   Blackstone  thought  that  th. 
intermediaries  had  time  to  reflect  and  accordingly  he  would  have  held 


SI. 
each  interfrediery  liable.       See  Pollock  on  '^orts  ?nd  •^d.  p.  158  and  540, 

Tn  '■''  ^'.'-'.   'iro,  one  boy  twisted  another  about  and  sent  him  whirling? 
'ird  who  pushed  hini  violently  aside,   injuring  him.       The  court 
held  thst  the  third  boy  acted  instinctively  dnd  did  not  break  the  causal 
connection. 

In  K   l/iniiciiCli;  51  a  Lcc;ii.  iviib   li- xi.  1::::= 11  uo.;/   it:iL   uiiLit;:;  anu   fat!  i.iVc;y, 
some  rf.ed  tried  to  stop  it  and  in  so  doin?,  frightened  the  team  so  that  it 
in.1urs5  pill".      Ttie  court  held  that  the  acts  of  the  interirediate  agents 
tiers  r.fessonable  and  not  culpnble  and  so  did  net  break  causation  from  the 
original  ?/rongdoer. 

/Follock  Snd  ?A.  158,  540  inclines  to  take  Blackstone's  view  of  the 
facts  in  the  squib  case. 

Jones  V.  BOY''    ,     .   1^,   1-1«,   1  ^tarkie. 

Action  on  the  case  against  a  coach  proprietor  for  so  negligently  con- 
ducting coacti  that  plff.  had  to  juii'p  off,  in  conse*iuence  of  which  his  leg 
was  broken.   It  appeared,  that  a  rein  had  broken,  one  of  the  horses  be- 
came ungovernable,  driver  turned  to  the  side  ci  the  road,  wheel  hit  some- 
thing, and  plff.  Jumpea  off  to  avoid  injury.   ''llenborough,  to  the  jury: 
two  questions  must  be  answered,  1st,  was  proprietor  negligent,  ?nd,  was  i, 
a  result  of  that  negligence  that  plff .  was 'placed  in  such  a  position, 
that  the  prudent  and  proper  thing  for  him  to  do  was  to  juirp.   Verdict 
for  plff^ 

Oausal  connection  is  not  necessarily  broken  by  the  non-culpable  ac- 
tion of  the  plff.  hiipself,  when  that  action  is  induced  by  and  naturally 
resulting  from  deft's  tortious  act.   Plff 's  act  was  an  act  of  reasonable 
care  and  prudence;  see  25  Winn;,  ?8?;,  ?S5. 

'■COLfi,Y  V.  SCOVILL,  p.  15,  P  Geo.  IV.  ?  Manning  ^^  Ryland,  105. 

Oase  for  negligence  for  throwing  a  bag  of  wool  from  a  warehouse  and 
injuring  plff.   It  appeared  that  servants  of  deft,  called  out  to  warn 
passers-by;  that  plff.  looked  up,  saw  wool  coming,  and  ran  directly  into 
it.   Judge  charged  that  if  plff.  lost  his  presence  of  mind  by  act  of 
deft,  and  in  the  confusion  ran  into  danger,  verdict  must  be  for  plf:  . 
'  i-dict  for  plff.   Rul.-    nisi.     '\   that  charge  was  correct. 
Plff's  Joss  of  self-Dossessicn  was  occasioned  by  wrongful  act  of  deft, 
and  therefore  deft,  is  liable  for  all  that  followed. 

"e  must  assume  that  deft,  was  in  fault.   Probably  the  fault  was  so 
p.i  ;lii  that,  no  instruction  as  to  it  was  necessery.   See  Beven  on  Negli- 
gence, 137. 

Here  also  i-f  plff.  hadn't  done  anything,  he  wouldn't  have  been  hurt. 
The  test  set  up  in  a  case  like  this  is,  did  plff.  Icse  his  nresence  of 
mind  so  as  lo  be  unable  to  reason. 

^  case  stands  for  the  point  that  the  causal  connection  is  not  bro- 
ken by  Lhe  non  culpable  action  of  plff.  himself,  when  plf's  action  nai- 
urally  results  from  deft's  tortious  acL.   Kor  instance,  as  in  this  case, 
plff.  acting  instinctively  by  reason  of  fright  produced  by  deft.'s  lort. 

Itiere  is  a  very  full  discussion  of  this  in  37  Ain.Rep.3S6,  note. 

Oi-lNNV  v.  NY.i^.Osntral  B.'-\  ,  .  r,  --   .   ^-^^. 

'.ction  of  tort  for   iiniages  lo  ■.vooi  delivGred  lo  deft,   as  common  car- 


82. 
c-i=;r  uj  wc  jc:iii  =  ,.  LL'oni  Niagara  Fails  to  'Uuau.y.   T?}e  goods  were  negli- 
i=nLly  delayed  on  the  way  for  several  days.   Soon  after  being  placed  in 
ieft's  warehouse  in  /Albany  they  were  injured  by  a  sudden  flood,  deft, 
not  being  negligent.   HrLD,  that  as  a  wrongdoer,  is  responsible  only  for 
the  proximate  and  not  for  the  remote  consequences  of  his  act,ions,  deft,  is 
clearly  not  liable.   The  flood  was  the  proximate  cause  of  the  loss,  deft's 
negligence  was  reinote  and  had  ceased  to  operate  before  the  loss  occurred. 

'he   last  human  wrongdoer  test  would  make  deft,  liable  in  this  case, 
so  if  we  take  that  rule,  we  must  admit  certain  exceptions. 

ish.  Mon-3on.  Law  Sec.  ^'i  makes  the  point  that  the  act  of  the  last 
iiLUi.ta  wrongdoer  may  have  spent  its  force, 

>  Judge  here  had  a  faint  foreshadowing  of  the  test  of  reasonable  an- 
ticipation of  probable  consequences.   Srent  many  authorities  sustain 
this..  Contra,  cA   N.Y.  500.   See  Oooley  on  Torts,  2nd  Ed.  p.  79,  note  2. 
See  as  to  Warehousemen,  1  Gray,  277-2P1;  Tenn.  699.  almost  contra  to  two 
last  cases  is  85  N.F..Rep.  (Ind.)  70  .    irst  two  warehouse  cases  and  ref- 
erence to  Coolsy  say:  Ceft's  negligence  was  in  a  certain  sense  concurrent, 
in  point  of  tin  .       .id  v.  Garrett,  c  Bing.  716,  leading  I'nglish 
case.   Noted  on  p.  ?:6  Sniith  Oases  on  Torts.   This  last  "^nglish  case  is 
referred  to  in  L.R,7  O.B.Div.cll.   "Loss  happened  while  tjie  wrongful  ac- 
tion was  in  force,  and  was  attributable  to  the  wrongful  act." 

■3ILW/SN  V.  NOY?S,  p.  ]8.  N.H.,lS7c. 

Action  on  the  case  for  negligence  in  leaving  bars  down  ...,.,.  ^..y  Flff's 
cattle  escaped  and  were  destroyed  by  bears.   Oourt.  charged  that  if  the 
loss  would  not  have  happened  but  for  deft's  negligence,  he  was  liable. 
H!'Lv,  that  this  instruction  does  not  set  up  the  right  criterion.   !i:ven 
when  deft's  negligence  is  a  cause,  it  is  a  question  of  fact  for  the  jury 
as  to  whether  or  not  it  is  too  reniote.   And  the  true  rule  is,  that  deft, 
is  liable  if  the  damage  is  the  natural  consequence  of  his  negligence,  and 
such  as  might  reasonably  be  anticipated.   But,  he  is  net  liable  if  the 
damage  would  not  have  happened  without  the  intervention  of  some  new  cause, 
the  operation  of  which  could  net  have  been  reasonably  anticipated.   New 
trial. 

The  "beir  case".   The  lower  court  instructed  th...  v...  "but.  for"  rule 
must  be  the  test.   The  Supreme  Oourt  disagreed  with  this  and  set  uc  the 
probable  consequence  rule. 

that  is  the  difference  between  Mill's  aefinition  of  cause  and  the 
"but  for"  rule?   According  to  frill's  rule  ail  antecedents  are  equally 
the  cause;  ycu  have  no  right  to  pick  out  any  one  as  the  cause.        i.o 
for"  rule  starts  sith  prscticaily  the  same  premises,  and  then  says  you 
can  pick  out  any  single  antecedent  and  consider  it  the  cause.   The  ob- 
jections to  this  rule  are  that  remote  antecedents  would  be  considered 
causes;  tjiat.  conditions  would  be  taken  for  causes,  and  that  deft,,  is  heia 
liable  if  there  is  a  tortious  act  of  his  in  the  chain  of  causation  no  mat- 
ter how  far  back  it  is  in  the  chain. 

The  "but  for"  rule  is  rejected  by  the  great  weight  of  authority. 


63, 
-YAN  v.-  N-.Y.  Centrel  B.R. ,  p.  27.  New  York,-  18c6. 
■  tt.  ihroukh  ntfrilifeent  nianagen^ent,  of  one  of  its  locomotives,'  set 
lire  to  one  of  its  wood  sheds.   Flff's  house i- 130  ft,,  away ,.  was  burned. 

,  Lhat  deft's  netliRence  is  too  reaiote,   That  a  building  on  which 
:^Pcil•kb  fall  should  burn  is  to  be  expected,  but  that  the  fire  should  spreac 
■  ;nds  on  concurrence  of  accidenLal  circuDiStances,  ■  ""  is  not  a  necessa- 
cr  usual  result.   Judgment,  for  deft. 

.  No  urial  by  jury.   The  judge  non  suited  the  plii.   . ne  courts  sup- 
oorte?d  the  non  suit  on  the  around  that  wind,'  etc.  are  accidental  circun- 
stances.  which  the  deft,  is  not  responsible  for.   The  Romney  v.  Marsh  cast 
would  have  been  decided  differently  if  this  rule  had  been  adopted  there. 
Che  true  view  is  the  deft..  ;i\ust  notice  the  wind  and  other  circumstances 
and  that  he  is  liable  for  the  probable  consequences  of  his  negligence. 

3re3t  weight  6i   auohority  is  agi-inst  this  case.   Appparent.ly  it 
aecides  that  difference  in  ownership  breaks  causal  connection.   See  6" 
Hun  ISl ,  which  is  decided  more  correctly  and  is  really  against  Ryan  case. 
Dsnyin?  'Ryan's  case,  ws  can  ssy  that  diversity  in  ownership  of  buildings 
burnei  or  of  the  l::rJs  traversed  by  firs,  or  irere  distance  of  locslity,  or 
the  perioi  of  tine  tetif-'een  the  burning  of  the  bui.dine'',  do  not  n3cessaril\ 
TTeaning  in  all  cases)  relieve  the  deft.  frcn.  liability.   See  also  ^1  Hu. 
^S5.   Fetter, J.   50  Hun  193  carries  out  -yan's  case  to  reductio  ad  absui 
iuir. 

-se' as  to  right  of  insurance  con:pany  over  against  negligent  party, 
May  on  Insurance,  ?n  •  '  .  -ecs.  ''fS  to  ^'5". 

In  49  N.Y.   "''       '      '"1  the  case  is  answered  but  noL  overrulec. 

-iCY^  V.  J^'  :v;.,  ;..  -i,  ..ichigan,  1S74. 

Action  to  recover  damages  for  certain  luildin^c  c^j  ic.-.c-..  l,.;  :ir.vc  i.ct-n 
burned  by  fire  negligently  con'municated  front  deft's  saw  miii.   buildings 
destooved  were  a  hotel,  and  two  buildings  5  and  5  feet  from  IL.   Verdict 
for  plff .   Exceptions  to  judge's  charge  that  deft,  was  liable  for  value 
of  last  two  buildings  if  their  loss  occurred  without  any  other  cause  than 
simply  tne  fire  burning  the  first.   H^^LC,  that  charge  was  correct.   If 
the  other  buildings  were  destroyed  by  the  burning  of  the  first,  no  ivatter 
how  far  away  they  were,  without  any  negli^F.ence  of  t/ie  owner,  and  without 
the  fault  of  aoine  third  party  as  -rox.  c-ause,  then  he  through  whose  negli- 
gence firsL  building  was  burned  i-.'-is  equally  liable  for  the  other. 

■Judge  here  "■^■'-ies  out  rule  in  -'■^'s  case  to  its  logical  and  absura 
conclusion. 

'The  argument  of  Ryan  v.  Ijit  i«;.Y. Central  R.R.  that  to  hold  the  deft. 
liable  might  be  ruinous  to  deft,  was  answered  by  saying  that  it  was  tetter 
to  ruin  one  wrongdoer,  than  thst  innocent  parties  should  have  to  bear  & 
part  of  the  loss. 

Lawrence,,],  in  ^ent  v.  Railway  .Co.  ,   .  ch,   Iliinois,  1S7] . 

Tiawrence  J.  considering  Ryan  v.  N.Y.Gent.R,S.'  Co.,  which  holds  that 
wrjcTs  thsr.-.  is  a  fire  corriinunicac-ed  by  a  locomotive  to  house  of  4  and  thence ; 
to  house  of  B,  the  latter  cannot  recover.   HSLD,  that  this  distinction 
rests  on  no  maintainable  ground.   The  only  just  rule  is,  tc,,4eter(riine 
whether  the  loss  was  i   natural  conseouence  of  the  nsglagenp^-,  which  any 


I 


51 . 
leasonaoie  parson  xight  havs  antioioated,  thyl  is  whether  the  negligenc: 
ivas  a  prcxiir.ate  cause. 

Juage  hers  says  only  question  here  is,  shall  innccsnl  parson  suffsi 
oc  hix  whose  negligence  wajs  proximate  cause. 

■'  ^UKiift  &  ST.  PAUL  'K.a.  V.  KiiLLGSG,  p.  c^d,  U.^.,  18V;i. 

icLion  to  recover  value  of  saw  iiiill  and  luinber  destroyed  by  fire  neg- 
ligently dommunicated  ly'oip.  a  steairiboat  cI  dsft's  to  a  i^rain  elevator  of 
[.heirs,  and  thence  to  the  lu/iiber  and  mill  from  300  to  500  feet  distant. 
'/'erdicL  for  plff.   bweptions  to  .judge's  charge  leaving  question  of  prox- 
imate cause  Lo  jury,'  Aeft.  claiming  hs  ought  to  have  held  thelnjury  too  re- 
101-.    _t,D,' that;  op'urt  was  right  in  submitting  to  jury  question  whether 
ourning  of  jiff's  pi^'operty  was  a  result  naturally  and  reasonably  to  be  ex- 
pected from  brunintj'  of  elevator  under  the  circumstances,  and  whether  it 
;;3s  result  of  deft.' s  negligence  without  the  intervention  of  other  causes 
not  reasonably  to /have  been  expected. 

The  instructions  to  the  .jury  weri  uctt-a  on  ihc.   prcoable  consequence 
rule-.   This  rule;  has  the  g.reat^st  support  anions  *'^-  -■■t>c -iT  1^:^  and  text 
writer'^. 

:..  :;,  6t  al,  V.  -       ,  : ,  ,.   ,  ^enn.  IP?"?. 

Aciion  on  Lhe  case  to  recover  value  of  property  alleged  to  have  been 
iestroyed  by  negligence  of  deft.   A  sipall  landslide  had  obstructed  deft'^ 
track,   i4  few  minutes  later  a  train  came  along,  was  derailed,  oil  cars 
curst,  oil  took  fire,  was  carried  down  the  river  and  burnt  clff's  proper- 
ty.  Judge  cnarged  that  deft's  negligence  was  not  proximate  cause.   "^r- 
lor.   HRLC,  judge's  charge  was  right.   f^acts  being  found,  he  had  a  right 
t,v  apply  the  law  to  them,  and  in  this  case  the  law  certainly  is  as  he 
Gfiarged.   Deft's  negligence  was  not  proxiniate  cause  of  Iccs,  because  )  at- 
ter  was  noi  sucn  a  consequsnc?  —  ■:'i-*-t  t:  -v-  '--r^n  foreseen  as  likely 
to  follow. 

-ourt  ruled  against  plff.  as  a  matter  of  law,  ^'ithout  leaving  it  to 
jury. 

The  judge  uses  "natural"  and  "probable"  as  synonymous.   Tt  is  Neil 
lo  guard  against  it,  as  som.e  courts  use  them  in  different  meanings. 

In  Kuhn  v,  Jewett,  32  N.J.3quity  zi7 ,   decided  by  the  Vice  Chancellor 
without  a  jury,  and  opposite  result  was  reached.   See  note  p.  ^?,  I'd.  1' 

SRTf^NILAND  V,  ::H/iFLIN,  p.  ^',  lixchequer,  1850. 

Follock,G.B. :  "I  doubt  whether  a  person  is  responsible  for  all  th- 
consequences  of  his  negligence.   T  consider  the  true  rule  to  be  that  a 
person  is  expected  to  anticipate  and  guard  against  all  reasonable  conse- 
quences but  not  against  those  which  no  reasonable  man  would  expect  to  oc- 
cur." 

3ofl:pare  Pollock's  statement  with  the  next  case. 

^}/lTH  V.  LONDON  &  S.W.By.Cc,  p.  43',  Cojr.ir:on  Pleas,  1870. 

Action  for  negligence  causint.  burning  of  plff 's  ccttaee.   Peft.  Ry. 
ran  near  plff's  cottage,  grass,  ■;  stub.ble  field,  and  a  road  lying  between. 
A  fortnight  before  the  accident  cleft's  servants  had  cut  the  grass.   This 
they  left  in  heaps  by  the  railroad.   It  was  very  --dry,  and  one  day  just 
after  two  train?  ^^^   passed  the  f^rass  Isd'^'  »>•-  loun^  to  be  on  fire.   A 


6r 

slronti  wind  caused  Lhe  fire  lo  coiiin^unicate  to  stubble  field,  thence  to  coi 
Laj^e.   H'i.Li),  that  defts.  arc  liable,  notwithstanding  that  the  consequence 
was  not  one  which  a  reasonable  man  might  have  foreseen.   ''li;::  rule  n:ay  be 
useful  in  determining  nsfiligsnce,  ^ut  when  negligence  is  cnoe  proved, 
party  guilty  of  it  oecomes  liable  Tor  its  natural  consequences  whether  he 
could  have  foreseen  them  or  not. 

Very  important  case. 

I'he  court  distinctly  rejects  probable  consequences  rule  in  legal 
cause.   It  says  it  is  important  to  delsrmins  negligence,  but  after  neg- 
ligence is  settled,  deft,  is  liable  for  the  natural  conse9u3nces  of  his 
act,  whetlier  the  result  could  have  been  foreseen  or  net. 

Also  compare  with  Shrgott  v.  Vayor  of  New  York  on  p.  91  of  Smith's 
Jases. 

'li^  v.  CHICAGO,  ic.  Ry.  Co.,  p.  45,  A'isconsin,  1991. 
^peal.   Action  to  recover  dairages  for  burning  of  plff's  property 
cy  lire  caus>3d  by  deft's  negligence.   Men  fighting  the  fire  thought 
PUf's  property  was  safe,  so  fought  the  fire  elsewhere,  but  a  strong  wind 
sprung, up,  and  the  property  was  burned.   H'';LO,  that  as  there  was  art  inter- 
vening cause-,  not  necessarily  following  from  the  first  negligent  act, 
without  which  plff's  property  probably  would  not  have  been  burned,  deft, 
is  not  liaoie. 

Plff's  l.^.nd  was  Z   1/2  i.iles  away  and  the  property  destrcysd  was  a 
cranoerry  patci  .    .e  firs  was  caused  by  deft's  negligence  five  days  be- 
fore it  extende-:  g  plff's  cranberry  pate'  .    n  extraordirsry  v.'ind  came 
up  after  the  firs  was  started.   "'      can  03   oefended  and  distinguish- 
ed from  the  Romney  v.  f^arsh  cabi,  iti  biitiL,  in  the  Romney  case  the  wind  was 
blowing  at  the  time  and  here  it  was  not,  but  came  up  later.   Also  here 
it  was  an  extraordinary  wind,  a  wlsirlwind.   the  .lucse  thought  that  on 
the  probable  consequence  theory  this  result  is  not  one  to  have  be-sn  -an- 
ticipated. 

I,  ^a.   "i'y.  Co..  .  -.,   Missouri,  19V'. 

-parks  from  a  loconictive  oi"  deft,  set  fire  to  the  prairie  at  2 
o'clock  in  the  afternoo..    .vind,  not  unusual  at  that  season,  carrie; 
the  flames  along  about  eight  naies  to  plff's  house  vfhich  was  burned  th: 
next  niornin: .    'LD,  that  as  there  v/as  no  evidence  of  intervention  of  a 
new  agency  in  lic^tructicn  of  plff's  property,- and  as  the  -Aind  was  a  usual 
one  at  that  season,  the  damages  are  such  as  .vould  reasonably  be  antici- 
pated by  a  prudent  man.   They  ars  the  natural  result  of  the  fire. 

[he  upper  court  here  thought  "natural"  meant  reasonably  to  be  an- 
ticipated, it  may  also  be  used  to  mean  that  a  result  has  transpired  with- 
out any  departure  fron,  the  ususl  operations  of  nature,  and  without  any  ex- 
traorlianry  departure  from  the  usual  courses  of  natur  .    ro.T  these  two 
staLe.Tients,  or  cases,  we  can  see,  that  the  changes  of  the  wind,  either  in 
direction  or  velocity,  does  not  necessarily  or  always  break  causal  connec- 
tion.  Ordinarily,  a  change  of  ivind  is  a  consequence  reasonably  to  have 
been  anticipated  as  probable. 

51  Fed.  Rep.  rFB  sL  "^^:  -  not  unusual  change  in  tij^^  >vin;  ■■.>.■,  hul  . 
break  in  causation. 


66. 
The  wind  was  not  unusual  and  so  the  injury  was  held  a  proxiniate  result. 
HILL  V.  A'INSOR.  p.  48.  Vass.,  1875. 

Tort  against  owners  of  a  stearr^  tut!  for  n8?;l-i^nce  of  those  in  charge 
whereby  plff.  was  injured^   He  was  working  on  some  piles  which  had  been 
driven  into  the  bed  of  the  stream  and  had  put  in  a  brace  to  keep  two  of 
theiP.  apart.   The  tug  str;'uck  them,  knocked  the  brace  out,  the  piles  came 
together  and  plff.  was  severely  injured.   Judge  charged  that  it  was  for 
jury  to  say  whether  the  Injury  was  a  natural  and  probable  consequence  of 
deft's  negligence,   Exceptions.   HIil.D,  that  charge  was  correct.   If  it 
was  probable  that  injqry  in  sonie  form  would  result  from  deft'^  act,  then 
deft,  was  negligent,  and  it  is  not  necessary  that  the  injury  should  have 
been  foreseen  in  its  precise  form,  so  long  as  it  now  appears  to  have  been 
a  natural  and  probable  consequence. 

Colt, J.,  when  he  says  natural  and  probable  evidently  ir^eans  natural 
only. 

This  case  modifies  the  probable  consequence  rule  to  a  certain  extent 
holding  that  it  is  not  necessary  that  injury  in  the  precise  forrr  in  which 
it  in  tact  resulted  should  have  been  foreseen,  and  that  if  injury  in  some 
form  should  have  been  foreseen,  deft's  act  was  negligent  and  deft,  is  lia- 
ble if  it  now  appears  that  what  in  fact  happened  was  a  natural  and  prob- 
able consequence  of  deft's  negligence. 

SCHEFFER  v..  WASHINGTON,  *c.  R.R.Co.,  p.  49,  U.S. .  18S1. 

Action  by  executors  of  one  Scheffer,  deceased,  to  recover  damages  for 
his  death,  which,  they  alleged,  resulted  from  negligence  of  deft.   It  ap- 
peared that  owing  to  negligence  of  deft.,  a  train  on  which  Scheffer  was 
collided  with  another.   He  was  wounded,  as  a  result  went  insane  and  fi- 
nally, eight  months  after  the  accident,  committed  suicide.   HELD,  that 
deft's  negligence  was  too  remote.   Proximate  cause  of  ScheffeP's  death 
was  his  own  act.   It  was  not  a  natural  and  probable  consequence  of  the 
injury  received  on  the  train..  Insanity  and  suicide  are  new  causes,  in- 
tervening to  break  the  causal  connection. 

15  Wallace  530  held  that  a  man's  suicide  while  insane  was  not  his  own 
act,  in  the  sense  in  which  that  term  is  used  in  insurance  policies.   In- 
surance policies  provide  that  in  case  the  insured  dies  by  his  own  act, 
that  the  money  payable  on  the  policy  shall  not  be  recoverable.   This 
holding  is  inconsistent  with  Miller's  statement  of  the  law  in  the  princi- 
pal case,.   To  be  consistent,'  the  court  should  have  said  that  Scheffer 's 
death  dis.  not  result  from  his  own  act. 

The  court  adopts  the  probable  consequence  rule,  holding  that  insanit 
and  suicide  were  not  a  result  naturally  and  reasonably  to  be  expected  frci 
the  injury  received.   "It  was  not  the  natural  and  probable  consequence, 
and  could  not  have  been  foreseen  in  the  light  of  the  circumstances  attend- 
ing the  negligence  of  the  officers  in  charge  of  the  train."   rhe  proxi- 
mate cause  of  the  death  of  Scheffer  was  his  own  act  of  self  destruction. 

It  is  doubtful  if  the  case  shouldnot  have  been  submitted  to  the  jury 
in  the  sam.e  manner  that  Bishop  v.  The  St.  Paul  City  Ry.  Co.  was  submitted, 

BISHOP  v.  ST-  PAUL  CITY  RY.  CO.?  p.  52,  Minnesota,  1892. 

Action  to  recover  for  injuries  received  by  negligent  upsetting  of 


67. 

of  a  car.   U  appeared  that  plff.  was  not  apparently  seriously  injured, 
at  the  time,  but  gradually  his  health  failed,  and  paralysis  supervened. 
There  was  medical  testimcney  to  the  effect  that  this  was  caused  by  the  in- 
jury.  HPLD,  that  left's  negligence  was  the  proximate  cause  of  the  paral- 
ysis, if  the  injury  received  in  the  accident  caused  the  disease  in  the 
course  of  which  and  as  a  result  of  which  paralysis  followed. 

If  the  probable  consequence  rule  had  been  applied  in  this  case,  the 
case  would  not  have  gone  to  the  jury.   But  the  court  did  net  apply  that 
rule.   They  held  the  deft,  liable  for  all  results  arising  naturally  Iron: 
the  deft's  set.   They  ssy  "The  injury  received  at  the  time  of  the  acci- 
dent was  the  proximate  cause  of  the  paralysis,  if  it  caused  the  disease  in 
the  course  of  which,  and  as  a  result  of  which  the  paralysis  followed.^ 

"^'he  case  is  irreconcilable  as  a  matter  of  iaiv  with  the  preceding  cas- 

2S. 

Here  the  case  went  to  the  jury;  in  the  preceding  case  the  decision 
was  on  a  demurrer.   Perhaps  the  reason  why  in  the  preceding  case  it  was 
not  given  to  the  jury  is  the  fact  that  it  is  difficult  to  prove  the  origin 
of  insanity.   Possibly  the  court  thought  that  fraud  would  get  in  if  the 
case  were  left  to  the  jury. 

Earl  J.  in  l^ihrgott  v.  Mayor  of  New  York,  p.  54,  N.Y. ,  1S84. 

Farl  J.,  Rules  holding  a  man  liable  for  those  results  of  his  acts, 
which  he  ought  to  have  foreseen  are  useless.   The  true  rule  is  that  a 
wrongdoer  is  responsible  for  the  natural  and  proximate  consequences  of 
his  misconduct;  what  are  such  conseouences  is  generally  to  be  determined 
by  jury. 

Here  is  another  rejection  of  the  pfcSbable  consequence  rule. 

A  woman  in  the  earlier  stages  of  pregnancy,  so  that  it  is  unknown, 
can  recover  larger  damages  owing  to  her  condition. 

^r^N  v.  LUYS-f^R,  p.  55.  N.Y.  ,  1875. 

Summary  proceedings  stat.  provides  that  if  the  proceedings  be   quasher 
by  Supreme  Court,  tenant  shall  recover  any  damage  he  may  have  sustained 
by  reason  of  such  proceedings.   Ti!is  was  an  action  under  this  statute. 
Damages  complained  of  were  removal  of  property  (personal),  destruction  of 
a  building,  loss  of  a  box  containing  money  which  he  kept  in  a  part  of  the 
building  used  as  a  stable.   Deft,  objected  that  he  was  not  liable  for 
money  which  was  kept  in  such  an  unusual  place.   H-LD,  that  plff.  is  enti- 
tled to  recover  such  damages  as  were  the  direct  consequences  of  the  acts 
of  deft.   If  any  part  of  the  loss  was  occasioned  by  plff's  act  or  could 
have  been  prevented  by  him,  he  cannot  recover  for  it,  but  there  is  no  ev- 
idence of  any  such  loss  here.   Tfie  loss  of  all  things  including  the  mone: 
was  the  direct  and  necessary  consequence  of  acts  of  deft. 

The  action  was  brought  under  statute  allowing  a  man  to  recover  for 
any  damage  he  may  have  suffered. 

The  case  differs  from  the  other  cases  we  have  had  in  not  being  a 
question  of  negligence.   The  case  does  not  adopt  the  probable  ccnsequenc 
rule.   The  court  held  that  the  deft,  was  liable  for  such  damages  only 
as  were  the  direct  consequences  of  the  acts  of  the  deft.   In  an  action 


i 


68. 
on  a  statute  the  court,  here  applies  a  different  rule  froni  what  it  general- 
ly applies  in  conmion  lew  negligence. 

Q[J5;'^N  V.  SA.aNCER'S  and  AROHKR,  p.  57,  'A'arwick  Assizes,  15  i^ilizabeth. 

Indictment  for  /administering  poison  to  Sleanor  Saunders  with  intent 
,  to  kill.   It  appeaf-ed  that  prisoner  intended  to  kill  his  wife,  gave  her 
an  apple  with  poison  in  it,  she  gave  it  to  deceased,  a  small  child. 
prisoner  told  her  not  to,  but  did  not  try  to  take  it  away  from  deceased- 
H5LD,  that  this  was  murder.   Prisoner  gave  tjie  poison  with  intent  to 
kill  a  person  and -a  person  was  killed.   Though  he  did  not  intend  to  mur- 
der this  person,  yet  it  was  murder  in  him  for  he  was  the  original  cause  of 
the  death.   It  is  every  man's  business  to  foresee  what  wrong  or  mischief 
may  happen  from  that  which  he  does  with  evil  intent. 

A  criminal  case.   It  was  long  held  that  a  civil  action  of  tort  for 
tne  death  of  a  human  being  could  not  be  maintained,  but  is  changed  now 
(generally  by  statute,  sometimes  by  decision.)   Today  in  a  civil  action 
the  death  of  the  daughter  would  be  held  to  be  the  result  of  the  father's 
act,  in  3  case  like  the  principal  case.   The  result  is  perhaps  not  fore- 
seeable, but  the  court  would  not  adopt  the  probable  consequence  rule  in 
case  of  a  malum  in  se. 

Causal  connection  is  not  broken  in  crimes  by  the  act  of  an  innocent 
agent,  nor  by  the  fact  that  an  act  intended  to  fall  upon  one  person  falls 
upon  another.   This  is  the  doctrine  of  constructive  specific  intent. 

HARRFr^ON  V.  BIIRKLFY.  p.  SO.  So.  Car.,  1847. 

Trespass  on "the  case.   Deft,  a  shop-keeper,  in  violation  of  the  stat 
ute  on  the  subject,  s  Id  whiskey  to  Bob,  a  slave  of  plff's,  by  means 
whereby  the  slave  became  intoxicated  and*3ied.   It  appeared  that  the 
slave,  after  buying  the  liquor,  drank  himself  drunk,  fell  down  somewhere, 
and,  the  night  being  cold  and  misty,  died  from  exposure.   Judge  left  it 
to  the  jury  to  say  whether  the  death  was  natural  and  probable  consequence 
of  deft's  act.   Verdict  for  plff.   '?eft.  appealed,  excepting  to  this 
charge  and  alleging  intervention  of  another  cause,  exposure.   H'^.LD,  that 
damage  resulting  from  a  wrongful  act  need  not  have  been  probable,  in  order 
for  plff.  to  recover,  but  must  be  such  as  has  actually  ensued  without  oc- 
currence of  any  extraordinary  circumstance  such  that  ordinary  course  of 
nature  is  departed  from.   Instructions  were  too  favorable  for  deft,  if 
anything  in  requiring  that  damage  be  probable.   As  tc  intervention  of  a 
new  cause,  it  was  one  which  deft's  own  act  naturally  brougV.t  into  action, 
and  30  it  does  not  break  the  causal  connection. 

In  disposing  of  the  case  the  judge  below  instructed  the  jury  to  fol- 
low the  natural  and  probable  consequence  rule.   The  court  above  said  on 
appeal,  that  this  was  too  favorable  for  the  deft.   It  held,  that  the  con- 
sequences must  be  proximate  and  natural  consequences.   It  said  that  by 
proximate  was  meant  that  deft's  act  must  predominate  over  other  causes. 
See  p.  S4  of  Smith's  Cases.   This  definition  is  not  found  elseiiihere. 
The  court  said  that  by  natural  results  is  meant  not  results  which  could  be 
foreseen,  but  those  which  followed  directly  without  any  great  departure 
from  the  course  of  nature.   Results  might  be  nstural  looking  backward, 
but  not  probable  looking  forward.   The  sentences  setting  forth  these 


69.^ 
ideas  are  among  the  most  iniportant  we  have  on  the  subject.  "j 

1. Sedgwick  on  Damages.  8th  Ed., Sec.  112,  has  something  to  say  which   | 
bears  directly  on  '.^'ardlbw's  opinion  in  Harrison  v.  Berkeley. 

SALISBURY  V.  HER;^H!LNH0DER,  p.  67.  Mass..  1871.  J/ 

Tort  for  injuries  to  building.   Deft,  occupied  adjoining  buiiding. 
In  violation  to  oiU   ordinance  he  hung  a  banner. sign  across  the  street. 
In  a  gals  the  bolt/whi;;h  held  the  other  end  came  cut  and  was  hurled  across 
the  street  through*  plff's  wndow.   Judgment  for  deft.   Appeal.   Deft, 
contends  the  injury  resulted  from  inevitable  accident.   HTID,  that  this 
would  be  an  excuse  if  deft's  set  were  lawful  and  he  had  used  due  care. 
But  deft's  act  was  wrongful  and  this  wrongful  act  placed  the  sign  in  reach 
of  the  gale,-  and  so  was  a  proximate  cause  of  the  injury.   Fact  that  a 
natural  cause  operates  in  producing  an  injury  which  could  not  have  hap- 
pened but  for  deft's  unlawful  act,  does  not  make  his  act  so  remote  as  to 
excuse  him. 

Somewhat  similar  to  Queen  v.  Saunders,  ante.   Court  declined  lo  ap- 
ply "probable  consequence"  theory.   Act  here  is  malum  prohibitum.   All 
courts  would  probably  agree  with  Queen  v.  Saunders,  but  some  courts  would 
not  follow  Salisbury  v.  Herchenroder.   Courts  frequently  fail  to  apply 
"probable  consequence"  theory  or  rule  as  a   liability  in  cases  where  deft's 
act  is  illegal  in  the  sense  of  being  specifically  forbidden  by  law,  es- 
pecially if  the  illegality  were  of  some  magnitude. 

If  deft's  act  had  not  been  illegal,  he  would  not  have  been  responsi- 
ble ifi  he  had  used  due  care.   rVhy  responsible  here?   Pollock,  2nd   Ed, 
p.  23.   "Commission  of  an  act  specifically  forbidden  by  law  or  omission 
to  perform  any  duty  specifically  imposed  by  law  is  generally  equivalent 
to  an  act  done  with  intent  to  cause  wrongful  injury." 

Deft's  illegal  actwas  continuous  right  up  to  the  time  ol   ir.r  injury. 

^ILSY  v.  ^^^ST  JPH^'<Y  R.R.  Co.,  H. J.,  1582. 

Suit  for  destruction  of  trees  by  fire.   It  appeared  that  a  fire 
started  in  dry  leaves  and  grass  nei;r  the  track,  just  after  train  had 
passed.   Deft's  thought  they  had  put  it  out,  but  later  it  started  up 
again,  and  in  spite  of  all  efforts  bijrned  through  the  woods  over  a  large 
tract  of  plff's  land  a  mile  from  the  station.   Verlict  for  plff.   Rule 
nisi.   Deft,  contends  that  second  fire  having  been  called  to  attention 
of  tenant  of  land  where  it  started,  it  was  his  duty  to  put  it  out  if  pos- 
sible, and  his  failure  to  do  so  was  negligence  which  broke  the  causal  con- 
nection.  H?.LD,  that  mere  absence  of  interference  does  not  break  causal 
connection.   Law   requires  that  damages  be  natural  and  proximate  conse- 
quences of  deft's  act.   They  were  so  here,  as  nearest  culpable  cause  was 
e3Ci;pe  of  sparks  from  engine. 

Here  a  third  person  failed  to  interfere.   Failure  of  third  person  to 
stop  consequences  of  deft's  negligence  does  not  relieve  deft.   Failure 
of  person  here  was  not  a  tort.   -se  Innes  on  Torts,  sec.  ?.d. 

Compare  Hogle  v.  N.Y. Central  R.R.  Co.,  p.  94  and  Loker  v.  Damon,  p. 
Smith's  Cases  on  Torts. 


95 


70. 
ALEXANOf-JR  v.  TOWN  of  NEW  OASTLF;,  p,  70.  Indiana.  1838. 
Action  for  injuries  alleged  to  have  resulted  from  negligently  permit- 
tins  a  sidewalk  to  beout  of  repair.   Ooniplaint  charged  that  a  pit  was 
made  by  the  side  of  the  street  and  suffered  by  the  town  to  retrain  unin- 
closed,'  whereby  plff .  without  fault,  was  injured.   Town  answered  that 
plff.  was  thrown  into  the  pit  by  one  Heavenridge.  a  man  whom  he,  as  con- 
stable, was  arresting.   Demurrer  overruled.   Judgment  for  deft.   Appeal 
on  ground  that  town's  negligence  afforded  Heavenridge  his  opportunity,  so 
was  projcimate  cause.   H?LD.  that  Heavenridge,  being  an  intervening,  in- 
dependent agency,  and  the  inmediate  cause  of  the  injury,  breaks  the  cau- 
sal connection  between  latter  and  deft's  negligence.   Judgm^ent  affirmed. 

Here  the  human  agent  came  in  and  did  an  act  affirmatively  which  act 
was  an  intentional  tort,  anj  not  merely  an  act  of  omission.   Such  wilful 
tortious  intervention  generally  breaks  chain  of  causation,  if  deft's  act 
has  ceased  to  operate  actively. 

VICARS  V.  'A'lLOOOKS.  p.  72,  47  3eo.  III. 

Action  on  the  case  for  slander.   Plff.  declaredtht  he  had  been  em- 
ployed by  one  J.G,  as   journeyman;  that  deft,  circulated  slanderous  re- 
ports about,  him.  whertjy  he  was  discharged  by  J.O. ,  and  also  refused  em- 
ployment by  one  R.P.   It  appeared  that  J.O.  had  employed  plff.  for  one 
year,  and  had  no  right  to  discharge  him.   Judge  nonsuited  plff,  on  ground 
that  he  had  showed  no  special  damags,  as  he  had  remedy  against  J.O.  and 
law  would  not  consider  him  as  having  lost  that  employment;  and  ?nd  on 
ground  that  R.P.'s  refusal  was  not  on  account  of  the  words,  but  on  account 
of  former  employers  having  discharged,  him.   Motion  to  set  aside  nonsuit. 
HIILD.'  that  special  damage,  to  ss  sustain  declaration  must  be  legal  and 
natural  consequence  of  the  words.   Here  it  is  an  illegal  consequence 
for  which  deft,  is  not  answerable.  "^    ?nd  ground  judgment  affirmed. 
Rule  refused. 

In  some  cases  as  this  special  damage  must  be  proved. 

The  employer  discharged  the  plff.  when  he  had  no  right  to  do  it,  so 
the  court  said  his  remedy  was  aganst  the  employer.   TJ^e  .discharge  the 
court  said  was  not  a  legal  consequence  of  the  alleged  slander.   This  case 
is  a  possible  but  doubtful  exception  to  the  last  wrongdoer  rule. 

LYNCH  V.  KNIGHT,  p.  74,  House  of  Lords.  1861. 

Action  by  Vrs.  Knight  to  recover  damages  from  Lynch  for  slander, 
uttered  by  him  to  her  husband,  special  damage  being  that  in  consequence  h 
her  husband  had  forced  her  to  leave  bis  house.   Majority  of  Law  Lords 
held  the  conduct  of  husband  was  not  a  natural  and  reasonable  consequence, 
and  so  there  was  no  sufficient  special  dairage.   Lord  '^ensleydale  held, 
that  itwould  be  enough  if  the  damages  were  such  as,  taking  human  nature 
as  it  is,  might  fairly  have  been  anticipated  and  feared,  and  it  was  net 
necessary  that  they  be  such  as  would  reasonably  follow.  Lord  Ellenborough 
wrong  in  saying  the  damage  must  be  natural  and  legal  consequence  of  the 
words. 

■'ensleydale  in  this  case  differs  from  the  view  taken  in  the  prece- 
ding case.   He  doubts  whether  the  consequence  trust  be  legal,  to  allow  of 


c 


71. 
special  dama^ies.   Adopt  ing  this  view,  one  would  have  to  nuke  an  excep- 
tion to  the  la$t  human  wiongdoer,  and  hold  that  if  earlier  wrongdoer  in- 
tended that  la/tter  wrongdoer  should  act,  the  earlier  ought  also  to  be  hela 
if  he  foresavf  the  act,  of  later  wrongdoer,  or  if  he  ought  to  have  foreseen  | 
the  conimissibn  of  later 's  icrt  as  a  result  of  his  own.   Piff.  would  have 
an  action  against  wrongdoers.  * 

Prof ./Smith  agrees  with  Lord  Wenileydale.  ' 

BIN^/rD  v.  JCHNSTC.M,  p.  75,.  Indiana,  1882. 

Action  to  recover  damages  for  death  of  plff's  son.   Two  sons  of 
plff.,  afged  1?  and  10,  bought  of  deft.,  a  dealer  in  such  articles,  pistol 
cartridges  loaded  with  powder  and  ball,  for  use  in  a  toy  pistol,  deft, 
showinsf  them  how  to  use  them.   Shortly  afterwards  the  boys  left  the  pis- 
tol ly;Lng  on  the  floor  at  home,  and  it  was  picked  up  by  a  young 
brother  aged  3.  and  discharged  killingone  of  the  boys.   HELD','  that  deft. 
was  guilty  of  a  wrong  in  selling  dangerous  article  under  these  circum- 
stances and  so  is  liable  for  proximate  consequences.   Intervening  agency 
does  not  preclude  recovery  if  the  injury  was  the  natural  and  probable  re- 
sult of  original  wrong.   Here,  deft,  was  bound  to  anticipate  ordinary 
conduct  of  children,  and  it  cannot  be  said  that  anything  that  happened  wa. 
unnatural  or  improbable.   !i'urther,  deft's  act  was  unlawful  by  statute, 
consequently  he  is  responsible  for  all  natural  and  proximate  consequences. 

Act  here  was  more  than  negligent,  it  was  illegal,  specifically  for- 
bidden by  statute.   In  such  cases  courts  go  beyond  the  probable  conse- 
quence rule. 

Deft,  is  liable  for  results  more  remote  from  the  original  wrong  than 
he  is  in  case  of  a  simple  act  of  negligence.   Causal  connection  was  not 
broken,  as  the  intervention  of  the  boys  ought  to  have  been  foreseen,  and 
the  children  here  could  hardly  be  called  free  or  responsible  agents. 

Okr^m   V.  TOrm,   p.  78,  Mass.,  1S70. 

Tort  for  carelessly  and  unlawfully  selling  to  plff.  a  child  8  years 
old,  two  pounds  of  gunpowder,  which  plff.  fired  off  and  was  thereby  in- 
jured.  It  appeared  that  the  child  bought  the  gunpowder  June  27th,  fired 
off  part  of  it  July  4th  with  consent  of  his  mother,  on  July  9th,  with 
knowledge  of  mother,  took  rest  of  gunpowder  out  doors,  fired  it  off  and 
was  injured.   Deft,  requested  court  to  change  that  there  was  no  suffi- 
cient evidence  to  support  a  verdict  for  plff.   Court  refused.   Verdict 
for  plff.   Exceptions.   HR'LD,  that  as  the  gunpowder  was  in  control  of 
plff's  parents  several  days  before  he  was  injured  the  injury  was  not  the 
proximate,  natural  or  probable  consequence  of  deft's  act.   And  court 
should  have  charged  as  deft,  requested.   ^'xceptions  sustained. 

Court  regarded  case  as  if  parent  had  bought  powder  in  first  place, 
and  given  it  to  boy.   Act  of  seller  had  spent  its  force  when  powder 
passed  out  of  control  of  boy  into  control  of  parent.   Act  of  seller  was 
no  longer  a  predominant  cuase;  predominant  cause  was  act  of  parent.   Her^ 
intervention  of  third  person  does  break  causal  connection,  although  the 
intervention  would  not  be  a  tortious  one.   Innes  on  Torta/lSS. 

This  case  differs  froir  A'ylie  v.  '^est  Jersey  R.R.  CO.  in  that  the  in- 


72. 

tervsning  parties  owed  a  duty  to  the  plff.  to  look  after  him. 

7  Bingham  ?11:  If  A  utters  slander  and  B  repeats  it,  A  is  not  liable 
for  special  damage  to  reputation.   If  A  asks  B  to  repeat  it,  A  would  be 
liable,  B  being  only  his  agent.   If  A  utters  it  with  the  intent  that  B 
shall  repeat  it,  and  knows  that  B  is  likely  to  do  so,  A  is  liable.   If  A 
was  indifferent  as  to  whether  B  repeated  it,  but  knew  that  B  would  proba- 
bly do  so,  the  authorities  say  that,  a  would  not  be  liable.   But  in  reason 
,  A  ought  to  be  liable. 

\    The  latter  two  cases  are  exceptions  to  the  last,  human  wrongdoer  the- 
ory . 

;oes  it  save  A  from  liability  if  B  repeats  the  story  with  malicious 
motive?  ,  That  we  shall  consider  later  in  Vars  v.  The  Canal  Co.  p.  S3  of 
Smitii's  Cases. 

ILLIOG^.  V.  COODA'IN,  p.  80,  5  Carrington  &  Payne,  190,  1831. 
Declaration  stated  that  plff.  possessed  certain  goods  in  a  shop  win- 
dow; that  deft's  horse  and  cart  through  negligence  of  deft's  servant, 
backed  against  the  window  and  damaged  the  goods.   It  appeared  that,  the 
servant  was  not  there  at  the  time,  and  evidence  was  offered  to  show  that 
some  passers-by  struck  the  horse,  which  was  a  quiet  animal,-  and  had  been 
left  standing  there  by  deft's  servant.   HF'LD,  that  if  a  man  leaves  s 
cart  standing  in  the  street,  he  must  take  the  risk  of  any  mischief  that 
may  be  done. 

Very  frequently  cited.   Facts  sre  not  fully  stated.   Judge  assumied 
that  leaving  a  cart  unattended  in  street  was  evidently  negligence. 
Would  be  held  generally  today  to  be  only  evidence  from  which  jury  n-igiit 
find  negligence.   Case  does  not  show  whether  third  persons  act,  was  wil- 
ful or  negligent.   Nisi  Prius  case;  judge  did  not  speak  wit.h  as  much  de- 
liberation as  if  he  were  writing  an  opinion  on  appeal.   "Any"  in  last 
line  of  opinion  is  too  strong.   See  Beven  on  Negligence,  1st  '^d.  960. 
LANF  V.  ATLANTIC  A'ORKS,  Mass.,  1872. 

Port  for  injury  to  plff.  caused  by  negligence  of  deft.   It  appeared 
that  deft,  left  a  truck,  with  a  bar  of  iron  in  it,  standing  in  the  street 
that  the  iron  would  easily  roll  off;  that  as  plff.  was  walking  by,  a  boy 
12  years  old,  Horace  Lane,  called  to  him  to  come  over  and  see  him  move 
the  wheels.   Plff.  did  so,  result  was  that  the  iron  rolled  off  and  in- 
jured him.   Deft,  requested  court  to  charge  that  Horace  Lane's  act  was 
not  negligence,  but  voluntary  meddling,  and  this  culpable  conduct  was  di- 
rect cause  of  injury,  plff.  could  not  recover.   Court  refused,  charged 
that  if  plff.  was  not  negligent,  intermediate  act  of  Lane  did  not  break 
causal  connection  if  it  was  not  an  act  which  deft,  might  reasonably  have 
anticipated.   Verdict  for  plff.   Exceptions.   Held,  that  act  of  third 
person,  interi'ening  and  contributing  a  necessary  condition  to  injury  will 
not  excuse  first  wrongdoer,  if  such  act  cu.qht  to  have  been  foreseen.   The 
test  is,  what  was  probable  and  to  be  anticipated?   It  is  a  question  for 
jury . 

It  is  immaterial  whether  act  of  Lane  was  negligence  or  not  as  deft. 
ought  to  have  apprehended.   Exceptions  overruled. 


73. 

Important  case.   '^'requently,  person  who  did  last  wrongful  act  is 
the  party  liable,  and  here  it  was  left  to  the  jury  whether  or  not 
the  wrongful  act  of  third  person  was  reasonably  to  have  been  anticipated 
from  deft's  negligence.   Comparing  this  case  with  Binford  v.  Johnston, 
ante  75,  a  boy  may  be  responsible  for  some  acts  at  12   years  of  age,  and 
not  responsible  for  other  acts.   Here  court  supposed  Horace  Lane  to  be 
responsible.   Plff.  might  have  had  remedy  against  Horace  Lane.   Court 
lay  particualr  stress  on  fact  that  Horace  Lane  did  not  intend  to  do  harm, 
although  he  did  the  act.   Here,  deft,  is  liable,  notwithstanding  inter- 
vention of  a  third  eperson  who  is  regarded  as  a  wrong  doer;  and  third  per- 
son who  is  regarded  as  a  wrongdoer;  and  third  person  may  perhaps  be  liable 
also. 

MARS  V.  DSLA^VARH;  &   HUDSON  CANAL  CO.?  p.  83,  N.Y.,  1889. 
Flff.  was  injured  while  on  a  train  of  deft,  by  a  wild  cat  engine. 
T'he  engine  had  been  left  on  a  side-track,  with  its  fire  banked  in  charge 
of  an  employe.   He  left  it  for  a  while,  and  in  some  way  the  engine  was 
moved,  across  several  switches  to  the  main  track,  and  started  up  at  full 
speed,  doing  the  injury  complained  of.   Plff.  claimed  that  deft'^ 

■  negligence  caused  the  injury.   Judge  charged  that  if  one  of  deft's 
employes  moved  the  engine,  whether  wilfully  or  negligently,  deft,  was  lia- 
ble.  Verdict  for  plff.   Appeal.   H5LD,  that  if  the  engine  was  malic- 
iously started  by  some  other  person  than  the  man  left  in  charge,  whether 
or  not  an  employe,  then  deft,  is  not  liable.   Deft's  act  in  leaving  the 
engine  was  not  the  cause  of  an  injury  which  could  not  have  been  foreseen 
as  a  natural  and  probable  consequence.   Intervention  of  criminal  act  of 
another  party,  being  an  intervention  which  was  not  probable,  breaks  the 
causal  connection. 

Landon , J. ,  dissented  on  ground  that  whether  or  net  deft,  was  liable, 
depended  on  whether  or  not  the  intervening  act  of  third  party  was  a  proba- 
ble consequence.   Majority  held  that  malicious  intervention  was  such  sn 
unusual  thing  that  they  were  almost  inclined  to  say  it  always  breaks  cau- 
sal connection,  even  though  sometimes  it  should  have  been  foreseen. 
Smith  doesn't  know  whether  the  court  intended  to  go  so  far  as  this  or  not; 
he  thinks  the  case  is  certainly  not  so  broad  as  that,  though  the  principle 
generally  holds  good. 

PASTfi:NE  V.  ADAMS,  p.  87,  Cala.,  1874. 

Defts.  were  lumber  dealers.   Had  piled  some  lumber  in  front  of  tneir 
office,  the  ends  of  some  timber  projected  beyond  the  end  of  the  building 
out  into  the  gangway  *'hich  led  down  beside.   Plff.  was  walking  along  in 
front  of  the  office,  when  somebody  drove  a  cart  through  the  gangway.   A 
wheel  caught  the  end  of  one  of  the  timbers,  doing  plff.  the  harm  ccmplain- 
ed  of.   Verdict  for  plff.   Appeal,  on  the  ground  of  human  agency  inter- 
vening.  HiiLD,  that  if  the  timbers  were  negligently  piled  up  by  defts., 
the  negligence  continued  until  they  were  thrown  down,  and  concurring  with 
the  other  agency,  was  a  direct  and  proximate  cause  of  the  injury.   Judg- 
ment affirmed. 

The  negligence  of  the  deft,  continued  from  the  time  that  the  lumber 


74. 
was  piled  until  it  was  thrown  down. 

Supposing  that  the  third  party  was  negligent,  who  was  the  last  human 
wrongdc^er?  In  answering  the  question,  note  the  deft's  act  was  a  contin- 
uing ona 

VIl1\AGI^;  of  3ARTSRVILL5  v.  :00K?  Ills.  1889. 

Plff\,  a  boy  of  15,  while  passing  along  a  sidewalk  was  negligently 
pushed  froriv  the  sidewalk  by  another  boy  at  a  Doint  where  it  was  elevated 
some  six  feiit  above  the  ground  and  was  unprotected  by  railing.   Verdict 
for  plff.   \ppeai,  on  ground  that  negligence  of  third  party  released 
deft,  froir,  liability.  H^:,Ld,'  thit  the  intervention  of  an  accident  or 
negligence  of  a  third  party  does  not  break  the  causal  connection  between 
negligence  of  the  village  and  the  in.iury.   Where  a  party  is  injured  by 
concurring  negligence  of  two  different  parties,  either  may  be  sued. 
Judgir=ent  affirmed. 

The  intervening  third  party  here  was  negligent,  not  wilful.   The  net 
ligence  of  the  village  began  with  the  finishing  of  the  sidewalk,  and  con- 
tinued to  the  titT'e  of  the  accident.   "^o  both  were  concurrent  at  the  tinie 
of  the  accident. 

.Vhere  a  city  or  town  is  liable  under  a  statute  for  damages,  because 
of  the  non  repair  of  highway,  there  is  a  great  difference  of  opinion  as 
to  ihs  liability. 

In  some  states  the  plffs.  can  recover  only  if  the  daniage  results 
solely  from  such  negligence.   This  is  held  in  Us.   and  Mass.  68  Me.    to 
155.   That  view  is  rejected  in  rnany  states  and  is  rejected  by  Prof. 
Sirdth.   Mass.  and  l/e.  give  a  different  construction  to  highway  statutes 
than  they  do  to  other  statutes. 

In  I'lc  Mass.  -'16-7  there  is  this  significant  sentence  by  Judge  Holmes: 
"THe  general  tendency  has  been  to  look  back  no  farther  than  the  last 
wrongdoer,  especially  when  he  has  complete  and  intelligent  control  of 
the  consequences  of  the  earlier  wrongful  act."   In  H8  N.B.  Rep.  694  a 
very  recent  case,  something  like  Fastene  v.  Adams,  suit  was  brought  agains 
the  third  party.   HELD,  that  the  fiult  of  this  third  party  broke  the  cau- 
sal connection  and  his  act  was  the  proximate  cause. 

See  Clerk  5-  Lindsell  380  and  883  on  contributory  negligence. 

Courts  are  sometimes  inclined  to  regard  as  a  legal  cause  that  one  of 
two  cause;,  which  began  to  operate  latest  and  was  in  active  motion  at  the 
moment  of  the  danger. 

MATHERS  V.  LONDON  STR^^R^f  TJRAMft'AYS  CO.,  p.  91,  Queen's  Bench,  1888. 
Plff.  was  a  passenger  en  an  omnibus.   The  driver  turned  on  the  tramway 
track  to  avoid  a  cart.   A  trarncar  was  coming  along  at  the  time,  the 
driver  pursued  his  course,  and  a   collision  resulted,  plff,  being  thrown 
off.   Judge  charged,'  that  to  find  a  verdict  for  plff.  jury  must  be  sat- 
isfied that  injury  occurred  solely  through  deft's  negligence.   Verdict 
for  deft.   Motion  to  set  aside.   H!i;LD,  that  judge  should  have  charged 
that  if  deft's  negligence  caused  the  accident  it  was  no  answer  to  say  ther 
was  negligence  on  part  of  omnibus  driver.   New  trial. 

It  is  definitely  settled  now  that  the  passenger  is  not  so  identified 
with  his  driver  that  the  negligence  of  the  driver  becomes  ths  negligence 


.75. 
of  the  passenger.   Both  drivers  were  assumed  to  be  negligent.   The  jury 
found  a  verdict  for  deft,  because  the  judge  had  told  theni  that  to  find  for  j 
plff.  they  must  find  that  the  accident  was  due  solely  to  the  negligence 
of  the  tramcar  driver. 

The  case  is  to  be  decided  just  as  if  two  n:en  who  were  out  driving    i 
should  meet  and  by  the  concurrent  negligence      Icf  the  two,  they      ' 
should  collide  and  injure  an  innocent  passer-by.   The  concurrent  negli- 
gence of  another  will  not  excuse  the  deft,   Tf  deft's  wrong  is  one  of 
\wo  or  .iiof3  concurring  effcient  causes  (other  than  plff's  fault)  which 
cVoperate  directly  to  produce  the  injury,  deft,  is  liable.   If  deft's 
ac1>^  is  the  proximate  cause,  not  necessarily  the  whole  proxin.ate  cause, 
but 'a  part,  of  it,  he  is  liable  even  if  this  part  is  much  the  smallest 
part:   Bish.  Non.  Con.  Law.  Sec.  39,  note  7,  Beven  p.  73. 

Take  this  case:  two  dogs  owned  by  different  men  kiolled  some  of  the 
sheep  in  a  flock.   !'"'ach  owner  in  the  absence  of  statute  is  liable  only 
for  those  killed  by  his  own  dog.   This  is  not  a  case  for  an  application 
of  the  principle  just  given  above.   2  Sheamnian  5-  "^sdfield  on  Negligence  , 
4th  5d.,  Sec.  638. 

Suppose  A  is  waUing  on  the  street  and  is  injured  by  the  simultane- 
ous negligence  of  B  and  0,  A  using  due  care.   A  sues  E.   B.  says,  "0 
was  negligent  also,  and  so  I  am  not  liable."   One  of  two  negligent  per- 
sons is  not  excused  because  there  was  another;  either  is  liable  for  the 
whole  diimage.   Whether  they  are  liable  jointly  is  another  question. 
Neither  one  cin  ask  the  court  to  apportion  his  share  of  the  liability. 
Plff.  however  can  get  but  one  satisfaction.   As  to  joint  wrongdoers,-  s-' 
Oooley  on  Torts,  2nd  ^'i.   1-^-1«'^   Smith's  Oases  chap,  io,  pp..  6^9  to 
713, 

If  there  is  concert  of  action  between  the  wrong  doers  they  may  be 
sued  jointly  or  separately.   See  Smith's  Oases  on  Torts  p.  669.   A'here 
there  is  nc  concert  of  action  between  the  wrongdoers,  they  may  be  sued 
separately.   In  the  principal  case,  the  tramcar  driver  and  plff's  driver 
were  simultaneously  negligent, 

HOGLE  V.  m^l   YORK  O'i^NT.  &c.   R.R.Oo.,  p,  94,  N.Y.,  ISS:". 

Action  to  recover  damages  for  injury  to  plff's  woods  caused  by  deft's 
negligence.   Deft,  requested  court  to  charge  that  plff.  could  not  recover 
if  he  neglected  to  use  reasonably  practicable  means  to  suppress  it. 
Court  refused,  holding  that  as  plff.  was  not  at  fault  in  the  origin  of 
the  fire,  he  was  not  bound  to  make  any  effort  to  suppress  it.   Verdict 
for  plff.   Appeal.   H'^f.iO,  that  judge's  charge  was  erroneous.   Plff. 
perhaps  would  not  be  bound  to  use  every  possible  effort  to  suppress  the 
fire,  but  he  should  do  what  was  reasonably  practical.   New  trial. 

See  Kellogg  v.  The  Pailroad  Co.  p.  198  at  ?04  and  S05,  a  case  where 
plff.' could  have  prevented  the  injury. 

LOKi^-R  V.  DAMON,  p.  95,  Mass.,  1S55. 

Trespass  quare  clausum.   Declaration  that  deft,  destroyed  part  of 
plff's  fence;  cattle  got  In  and  destroyed  plff's  grass,  so  that  he  lost 
a  year's  profits  of  his  close.   It  appeared  that  plff.  allowed  the  breach 
to  remain  unrepaired  for  six  months.   H^'LD,  that  for  direct  consequences 


76. 
alone  of  deft's  act  plff.  cjn  recover  and  not  tor  remote  consequences 
which  pU't'.  might  have  avoided  by  his  own  act.   It  plff.  had  not  known  of 
the  broken  fence  it  would  be  different.   He  did  not  know  icf  it  and 
should  have  repaired  it,  and  hence  cannot  recoverfcr  subsequent  damage. 

Note  to  Hogle  v.  R.R.Oo.  and  Loker  v.  Danion: 

In  iVylie  v.  R.R.Co.  ante  69, ■  a  third  person  had  an  cpport^unity  to 
stOG  the  fire,  bui  dia  net  do  so,  yet  plff.  recovered.   Here,  "Pjlff.  had 
opportunity  to  stop  fire.   Principle  here  applied  is  called  "rule  of 
avoidable  consequences."   Damages,  the  continuance  of  which  plff.-  might 
have  prevented  by  his  own  reasonable  care,  cannot  be  recovered,  for  law 
will  not  permit  plff.  to  ascribe  the  whole  of  his  damages  to  deft..,  but 
plff.  still  has  an  action  for  damages  which  occurred  before  he  could 
stoj  them.   I  Sedgwick  on  Damages,  8th  ltd.,  sec.  204.   Rule  is  one  of 
Umitation  on  amount  of  plff's  recovery.   Post,  pp.  191  and  198.   9  Har\ 
Law  Rev.  8C. 

UMMARY  OF  LEGAL  OAUSI^S. 

It  is  the  most  important  subject  in  the  two  volumes  on  torts.   Ever:y 
case  raises  tjie  question  of  legal  cause. 

Bacon's  maxint=  "In  jure  causa  proxima  non  remota  spectatur"  furnishes 
no  assistance  in  determining  what  is  the  proximate  and  what  t,he  remote 
cause.   Bacon  said  "It  were  infinite  for  the  law  to  consider  the  causes 
of  causes,  and  their  impulsion  of  each  other;  therefore  it  contenteth  it- 
self with  the  immediate  cause,  and  judgeth  of  acts  by  that,  without  lock- 
ing to  any  father  degree."   This  is  not  to  be  taken  literally.   See 
:^ooley  on  Torts,  2nd  i^.d.,  p.  88.   The  proximitji  of  cause  has  no  relation 
to  contifiuity  of  space  or  time.   See  4  Gray  449;  Beven  on  Negligence  7^, 
"3. 

The  theory  of  Mill  is  impracticable  for  as  before  shown  it  holds 
either  oall  or  none  who  were  in  the  chain  of  antecedents, 

TH!^:  "BUT  f^'OR"  RIJLF;:  It  is  similar  to  Mill's  rule  but  it  allows  one 
antecedent  to  be  singled  out.  It  is  objectionable  because  it  allows  a 
remote  human  antecedent  to  be  held  liable  though  there  were  others  more 
wrongful  and  more  proximate.  It  would  allow  the  plff.  to  trace  back  tie 
causation  until  he  struck  a  capitalist.  This  rule  is  rejected  by  the 
great  weight  of  authority.  A  case  illustrating  the  use  of  this  rule  i: 
3ilman  v.  Noyes  p.  "??>  of  these  notes. 

THE  "PROBABLE  CONSEQUENOE"  RULE:  Deft,,  is  liable  for  such  conse- 
quences only  as  a  reasonable  man  standing  in  deft's  place  at  the  time  oi 
committing  the  tort  ought  to  have  foreseen  as  likely  to  happen.   This 
rule  is  the  most  popular  one.   The  first  exception  to  this  rule  is, 
deft's  liability  is  not  limited  to  probable  consequences  in  cases  where 
deft's  act  was  illegal  in  the  sense  of  being  specifically  forbidden  by 
law,  especially  if  the  illegality  were  of  some  magnitude.   Salisbury  v. 
Herchenroder,  p.  cl|  in  the  Oases.   The  second  exception  to  the  rule  is 
that  it  is  not  necessary  that  damage  in  the  precise  form  in  which  it  hap- 
pened should  have  been  forbidden,  if  deft,  should  have  foreseen  that  seme 
damage  could  happen.   Hill  v,  Winsor  p.  48  of  the  Oases.   The  third,  ex- 


77. 
cepLion  to  Lh3  rule  is:  where  deft,  intended  to  produce  the  spsoific  re- 
suit  which  actually  followed,- deft.  Is  liable,  although  that  result  was 
not  probable.   The  fouyt'th  exception  to  the  rule  is:  where  the  act  is  an 
intentional  act  done  f/oni  a  consciously  wrons^  motive  (that  is,  iirin^oral 
acts,  although  such  ajCts  would  not  come  within  the  purview  of  the  crimi- 
nal law),  deft,  is  pp'obably  liable  although  deft's  act  is  not  specifical- 
ly illegal.   ;-:ee  1 /Bishop's  New  Cri/n.  Law,  note  to  sec,  S?7.   These 
four  exceptions  are/' in  the  direction  of  extending  deft's  liability. 

It  is  possible  that  additional  exceptions  to  the  probable  conser;*- ^("^ 
quence  rule  are  fiffth:  the  doctrine  of  Vicars  v.  'illcocks,  p.  72   of  the 
dases.   This  case  is  perhaps  wro  g  however.   See  foot  of  p.  74  of  the 
Oases.   Sixth:  the  arbitrary  lindtation  of  liability  for  the  spread  of 
fire,  adopted  inl  Ryan  v.  I^.Y.Cent.R.R.Co.   This  case  is  wrong.   Sev- 
enth: the  doctrine  of  avoidable  consequences.   These  last  three  excep- 
tions restrict  the  deft's  liability. 

The  popularity  of  this  rule  is  due  to  the  fact  that  the  cases  are 
usually  cases  of  negligence-  and  negligence  is  deterniined  by  the  acts  of 
reasonable  n:en.   Then  too,-  it  enables  the  judges  to  unload  the  question 
onto  the  jury. 

it  is  8  serious  question  whether  one  rule  should  be  sought  for  to 
cover  all  classes  of  cases  -  whether  it  n;ight  not  be  better  Lo  j^et  dii- 
ferent  formulas  for  the  different  classes. 

TH£  LAST  A'RCNGDOER  RULB:  The  legal  cause  is  the  last  1or  nearest) 
responsible  and  culpable  human  agent  in  the  chain  of  antecedents,  that  i; 
the  one  last  before-the  one  nearest  Lo-Lhe  happening  of  plff's  daniage. 
Aharton  on  Negligence  1st  Ed.  .App.  botton.  of  page  S23,.  also  sair.e  volurre 
sec.  S5  to  39,  sees.  1S^-  to  14E,    Bishop  Non  3on.  Law,  sees.  44  -  ll. 

The  first  exception  to  this  rule  is  that  deft,  is  not  liable  if  the 
nearest  human  wrongdoer  that  is,  the  deft,  is  a  very  remote  link  in  the 
chain  of  antecedents.   The  force  which  he  set  in  motion  may  have  become 
exhausted  or  spent  before  the  happening  of  the  damage.   This  limitation 
brings  the  rule  nearer  to  the  "proximate  and  natural"  rule.   The  second 
exception  to  this  rule  is,  the  last  wrongdoer,  although  himself  liable 
is  not  always  the  only  one  liable,  an  earlier  wrongdoer  may  also  be  lia- 
ble, first,  where  the  earlier  wrongdoer  intended  that  his  act  should  hav. 
the  effect  of  inducing  the  later  wrongdoer  to  do  the  subsequent  tort;  or, 
second,  where  the  earlier  wrongdoer  foresaw  the  commission  of  the  later 
tort  33  a  probable  result  of  his  own  con'.mission  of  the  earlier  tort;  and, 
third,  (according  to  some  authorities),  where  the  earlier  wrongdoer  ough.- 
Lo  have  foreseen  such  result  as  probable.   Lane  v.  Atlantic  iVorl<s  p.  SO 
of  the  Cases.   >*;harton  on  Negligence  1st,  £d.,  p.  \^,Z.      Tf'e  probable 
consequence  rule  also  has  these  last  two  exceptions. 
m   PROIflMATiL'  AND  NATURAL  RUL^ . 

Proximate  means  predominating  cause,  naiural  means  consequences  en- 
suing without  an  extraordinary  departure  from  the  usual  course  of  nature, 
even  though  not  to  have  been  foreseen  as  probable.   The  natural  and 
proximate  rule  is:  Daft,  is  liable  if  his  act  was  the  predominating 
cause  and  was  not  interrupted  by  any  unnatural  agency.    ^     ' 


78. 
In  usiny,  this  rule,  you  take  your  stand  after  the  accident,  and  not  be- 
L'ci'e,  as  in  the  probable  consequence  rule.   The  rule  is  not  a  good  work- 
ing rule;  it  has  been  expressed  differently  by  different  writers.   Prof, 
^niith  thinks  it  is  the  ccniing  rule. 

Perhaps  the  cases  are  harmonized  by  this  rule  which  may  be  stated 
thus:  Deft,  is  liable  for  --  the  probable  consewuence  of  his  acts  and 
for  such  improbable  consequences  as  result  prcxiniately  and  without  any 
extraordinary  departure  from  the  usual  course  of  nature.   The  ?nd,  Srd 
and  '''th  exceptions  under  the  nrobable  consequence  rule  would  have  to  be 
.stated  as  exceptions  where  one  factor  in  bringing  about  the  result  was  an 
Sixtraordinary  interposition  of  nature,   T^e  ^th  exception  given  by  the 
probable  consequence  rule  would  not  have  to  be  stated  as  an  exception  un- 
der the  last  wrongdoer  rule.   The  1st  and  2nd  exceptions  to  the  last 
wrongdoer  rule  need  not  be  stated  under  the  prcxiii;ate  and  natural  rule. 

'^/hatevsr  rule  of  legal  cause  you  adopt,  having  once  established  the 
causal  connection,  the  latter  is  not- broken  by  the  ;r:ers  intervention  of: 

1.   Ordinary  natural  forces,   Porrnpv  v.  M^rsh  case,  p.  1  of  thi. 
Cases, 

he  usual  or  natural  action  of  an  animal,   f.<cDonald  v.  Snell- 
ing,  p.  :^  of  the  cases. 

8.   The  irresponsible  action  for  instinctive  action)  of  a  huir:8n  be- 
ing other  than  plff .  or  deft,   Scott  v,  Shepherd,^  p.  8  of  the  Oases. 

4.-  The  non-oi'lpable  action  of  plff.  hiniself,  when  it  naturalUy 
results  rroiT:  deft's  -  tortious  act.   fa)  Action  of  plff.  '.vhile  still  1: 
possession  of  his  faculties  and  using  due  care.   Jones  v.  "Soycs  p.  ]R 
of  the  Cases.   (b)  '^o  called  action  f unconscious  agency)  ivhile  actinr 
instinctively  by  reason  of  frieht  oroduced  by  deft's  tort.   ''ocley  v. 
Scovsll,  p.  15  of  the  cases. 

In  closing  the  subject  of  legal  ceuse,  I  nay  say  that  whatever  rule 
you  adopt  you  will  find  it  all  cut  to  oieves  with  exceptions.   The  re- 
sult in  a  great  nia.iority  of  the  cases  will  therefore  be  the  same  which- 
ever rule  you  take. 

OHAFTSR  II. 
^H^THeft  PLAlNH^F'jS  ACTION  IS  bAHHi^u  tiY   Hio  dish   ^HGNG. 

■-LCH  V.  VdSSON,.  p.  97,  Mass..  1S53. 

Action  of  tort  for  running  down  plff.  while  driving  on  the  highway 
and  breaking  his  sleigh.   It  appeared  that  deft,  wilfully  ran  into  plff. 
but  he  was  allowed  to  introduce  evidence  to  show  thatit  was  done  whil;. 
the  parties  were  racing  for  money.   Judge  charged,  that,  if  this  was  so, 
plif.  could  nkt  recover.   Verdict,  for  deft.   '^^xceptions."   HftLD,  that 
while  plff.  could  not  recover  if  he  had  to  d&pend  on  an  illegal  transac- 
tion, as  the  race  here,  it  is  equally  true  that  where  plff,  does  net  rel.\ 
on  it,,  deft,  has  no  right  to  escape  consequences  of  a  wilful  act  on  the 
ground  that  both  were  engaged  in  an  unlawful  act. 

The  parties  were  both  engaged  in  an  illegal  act.   There  is  no  rule 
of  law  that  a  man  cannot  recover  for  any  damage  which  he  suffers  while 
doing  an  illegal  act. 


79. 
I'hat  proposition  is  true  however  in  sonie  cases,  but  in  case  of  wilful  in- 
jury, it  is  no  defence  to  say  that,  the  injured  party  was  doing  an  unlaw- 
ful aci.   This  was  a  case  of  a  wilful  act  of  a  confederate.   Keener  on 
Quasi  contracts,  pp.  274  to  ?75  says  he  does  not  believe  in  the  test  of 
whether  or  not  plff .  has  to  prove  his  illegal  act  in  order  to  make  out 
a  prima  facie  cause  of  action.   Two  important  deductions  flow  from  this 
case.   1.  There  is  no  general  rule  of  law  thkt  a  man  cannot  recover 
for  any  damage  suffered  by  hi;r;  at  a  time  when  he  is  himself  acting  ille- 
Saiiy.   (Pollock  on  Torts,  2nd  Pd.  159,.  Sroomes'  Maxims  381.)   II.  Wil- 
\  ful  and  intentional  infliction  of  damages  on  plff.  can  never  be  justified 
"by  the  mere  fact  that  he  was  at  the  time  acting  illegally. 
SnU,^:   V.  BURKHAHDT',  p.  9S,- Mass. ,  1870. 
■^   Tort  for  injury  to  plff's  horse.   Flff's  horse  and  wagon  were 
bkcked  up  against  the  sidewalk  in  violation  of  a  city  ordinance  which 
provided  that  wagons  should  notbe  so  placed  if  only  packages  of  less 
than  SOOt'  weight  were  to  be  unloaded.   There  was  sufficient  room  for 
deft's  servant  to  drive  by,  but  he  negligently  ran  into  plff's  horse. 
H!?l.D,  that  while  plff.  was  negligent  in  regard  to  keeping  the  ordinance, 
his  negligeoce  did  not  contribute  to  the  injury.   In  order  to  maintain 
an  action  plff.  does  not  hcve  to  prove  his  violation  of  law,  for  that  de- 
pends on  wight  of  packages,  which  is  entirely  immaterial  to  his  cause  of 
action.   The  fact  that  he  was  breaking  the  law  does  not  leave  him  with- 
out remedy,  provided  he  does  not  have  to  prove  his  breach  of  the  law  in 
order  to  maintain  his  action. 

Deft,  here  was  a  stranger.   Plff.  although  a  wrongdoer  (hers  plff. 
was  breaking  an  ordinance)  if  damaged  by  the  negligent  act  of  stranger, 
can  recover  except  when  his  own  act  is  a  contributing  cause  of  his  injury 
The  last  case  showed  that  such  a  plff.  may  recover  if  damaged  by  the  in- 
tentional act  of  a  confederate  in  '/.rongdoing.   Flfi.  was  liable  Lo  the 
state  for  a  violation  of  the  ordinance,  but  his  violation  contributed 
nothing  to  his  injury.   If  plff.  had  been  acting  legally,  the  accident 
might  have  happened  just  the  same.   For  instance,  suDpose  no  such  ordi- 
nance existed. 

NORRIS  V.  LITOHRHiLO.  p.  101,.  N.H.,  1857. 

Bell, J.  It  is  often  said  that  a  person  who  suffers  from  the  negli- 
gence of  another  cannot  recover  if  he  was  himself  at  the  time  a  trespass- 
er or  acting  in  violation  of  law.   This  is  not  correct.   For  his  tres- 
pass or  wronghe  may  be  answerable,  but  that  does  not  affect  his  rights  az 
to  other  parties.   He  is  entitled  to  recover  unless  it  appears  that  his 
negligence  or  his  fault  has  directly  contributed  to  his  damage. 

In  this  case  there  was  a  statute  that  teams  must  pass  on  the  right 
Plff.  was  on  the  left  of  the  center  of  the  road,  but  thought  he  was  on 
the  right.   He  met  another  team  and  in  consequence  of  an  insufiicient 
railing  on  a  bridge,  was  forced  off  the  bridge.   lie  sued  the  town. 

The  discussion  by  Bell  J.  is  one  of  the  be=^t  in  the  book. 
■3ANN0iv  V.  ^^ILSCN,p.  108,  Penn.  1856. 
Action  on  the  case  to  recover  damages  for  destruction  of  goods. 


80. 
Plff.  had  placed  some  of  his  wares  on  the  sidewalk  in  i'ront  of  his  store.  , 
Oeft's  horse,  through  neglgence, 'ran  away,  and  coming,  on  the  siaewaik 
crushed  plff '&■  wares. .   Deft,  offered  to  prove  that  plff's  act  was  in 
violation  of  ib   city  ordinance./  Judge  ruled  this  out  and  charged  that 
the  wrong  pl/f.  might  be  doin^'  to  the  city  was  not  as  between  hitii  and 
deft.,  such/contributory  negligence  as  would  prevent  his  recovering  in 
this  actiory.   Verdict  for  plff.   filrror.   H!?LD,  that  there  was  no  error 
in  the  re.i/fection  of  evidnce,' nor  in  judge's  charge.   Flff's  violation  of 
city  ordinance  was  not  a  proximate  cause  of  the  injury. 

Plff".  was  a  wrongdoer,  but  the  court  aid  not  regard  his  wrong  as 
any  part/of  the  cause  of  the  injury,  and  so  allowed  him  to  recover.   The 
mere  fac/t  that  the  goods  were  there  had  no  tendency  to  cause  the  injury. 
Had  plf^'.  put  the  go  cds  out  after  he  saw  the  horse  coniing,  plff.  could 
not  have  recovered. 

.^fcntributory  illegality  is  a  better  phrase  to  describe  what  plff. 
did  thfen  contributory  negligence. 

VcGP/.TH  v.  MRH'AIN,  p.  104,  Vass.,  1873. 

Tort  for  injuries  received  through  deft's  negligence ,   It  appeared 
that  plff.. was  working  for  deft,  on  Sunday,  and  was  injured  in  working 
through  deft's  negligence.   HF.LD,  that  he  could  not  recover  because  he 
was  working  on  Sunday  which  illegal  act  was  inseparably  connected  with 
the  cause  of  action  and  contributed  to  his  injury.   If  the  illegal  set 
had  not  contributed  to  the  injury,  he  could  have  recovered. 

Plff.  here  was  injured  by  the  negligent  act  of  another  and  that  oth- 
er was  a  confederate  and  not  a  stranger.   Phe  case  is  unlike  'Welch  v. 
'A'esson  where  the  act  was  a  wilful  one.   If  the  wheel  had  been  started  by  ' 
the  negligent  act  of  a  stranger  plff.  would  probably  have  been  allowed 
to  recover,  as  plff's  act  would  probably  not  be  regarded  as  a  cause. 
According  to  this  case,  the  law  does  not  recognise  any  duty  of  care  by 
one  confederate  against  another,  but  according  to  ''eich  v.- A'esson,  con- 
federates must  refrain  from  wilfully  injuring  each  other.   The  case  can- 
not be  distinguished  from  Steele  v.  Burkhardt  as  to  n^atter  of  causation, 
except  that  here  the  injury  was  inflicted  by  a  confederate.   According 
to  this  case,  the  law  does  not  inipose  a  liability  upon  confederLtes  for 
negligence. 

•Aas  the  illegal  working  by  plff.  a  condition  or  a  cause?   It  woula 
seem  that  it  was  a  condition,  for  the  injury  might  have  happened  just 
the  same  onany  legal  work  day- 

A'ALLAGR  V.  GANNON,  p.  106,  Georgia,  1888. 

Action  by  widow  of  one  Cannon  against  the  R.R.  on  which  he  was  an 
engineer,  to  recover  damages  for  his  death,  alleged  to  have  been  caused 
by  negligence  of  employes  of  R.R.   Gannon's  detrain  ran  into  another, 
both  being  engaged  in  carrying  Confederate  soldiers  and  supplies.   Judge  ^ 
charged  that  if  Gannon  was  voluntarily  engaged  in  performiince  of  acts 
violating  laws  of  U.S.,  and  froii.  that  cause  solely  was  killed,  then  he 
could  not  recover,  but  if  solely  through  other's  negligence  he  could. 
\'erdict  for  plff.    nor.   H!^;LD,  that  jiJfee  should  have  charged  that  it 
at  the  time  Gannon  was  killed  the  railroad  company  and  employes,  inclua- 


lAi 


01 
^  J  • 

ing  Oannon  as  weJl.as  those  whose  negligence  caused  the  injury,  were  vol- 
untarily engaged  if>  an  illegal  act  (transporting  Confederate  soldiers) 
then  plff.  could  ncit  recover.   One  offender  against  the  law  cannot 
set  off  against  pir{'.  that  he,  too,  is  a  public  offender  in  another  .. 
distinct  transaction'.   But  when  both  have  been  engaged  in  same  illegal 
transaction,  then  lavv\gives  no  relief. 

See  40  3a.  52  (Brown,  3. J.,  at  54,  56)  63  H.Z.   532.   The  Confeder- 
ate States  had  a  governipent  "defactc"  at  that  tinie,  which  ndght  possibly 
have  legalized  act  of  Caipnon,  under  its  orders.  rouri   thought  there 
was  no  duty  of  care  wher^,  bolh  parties  were  engaged  in  the  same  illegal 
transaction.   Contra,  3rbss  v.  Miller,  (Iowa)  61;  w.'.*^. Rep.  385. 
B03W0RTH  V..INHB.  OB'  3'A'ANSEY,- p.  109.- Mass.,  1845. 
ction  to  recover  damages  for  an  injury  received  through  a  defect  in 
tne  rjighway.   It  appeared  that  plff.  was  driving  on  business  on  Sunday. 
'There  was  a  statute  against  this,  except  where  it  be  necessary.   Judge 
charged  that  plff.  could  not  recover  unless  he  showed  that  his  business 
had  to  be  transacte:!  on.  Sunday.   Verdict  for  deft.   SJxceptions.   HELD, 
that  this  case  con;es  within  the  principle  that,  in  order  to  recover,  plff- 
must  show  hin;self  free  from  negligence  or  fault.   Judge's  charge  was  cor- 
rect, that  burden  of  proof  is  on  plff.  to  show  that  his  business  was  nec- 
essary, that  is,  that  he  was  not  engaged  in  an  illegal  act. 

This  case  has  caused  much  discussion.   The  legislature  finally  in- 
terposed and  changed  the  law  as  to  recovery  in  such  a  case. 

The  Vass.  court  in  this  case  and  Lyons  v.  Ues.  seen:  to  hciv&  ciiought 
that  illegal  travelling  on  Sunday  was  the  legal  cause  of  plff's  injury. 
The  view  taken  in  the  principal  case  that  the  accident  !r;ust  be  due  to  de- 
fect in  highway  alone,,  is  peculiar  to  Wass. 
LYONS  V.  Dh.SOT!i;LLF;,  p.  110,  Mass.,  1S7S. 

Tort  for  injuries  to  plff's  horse  caused  by  illegal  negligence  of 
deft.   Plff.,  driving  Sunday,  hitched  his  hcrse  at  the  side  of  the  road 
behind  deft's  buggy.    Injury  was  caused  by  deff's  horse  backing  the 
buggy  against  plff's  horse.   Not.  certain  whether  or  not  deft,  was  neg- 
ligent.  Judge  charged  that  fact  that  plff.  was  travelling  on  Sunday  wae 
imntaterial,  he  could  recover  unless  his  negligence  contributed.   H^'", 
that  this  was  wrong.   Question  is,  did  his  illegal  travelling  on 
Sunday  contribute  to  the  inj  ^-y^   '■'ecessarily  it  '^i-',  ?c  he  cannot  re- 
cover. \ 

The  court  said  that  if  a  man  was  travelling  on  Sunday  it  iwcessarily 
contributed  to  any  injury  sustained.-  This  is  error.   Steele  \r^  Burk- 
hardt  is  right.   The  afases  in  other  jurisdictions  are  overwheliri|/ngiy 
against  the  Mass.  casei-^n  the  point  of  Sunday  travelling. 
mm^'   V.  LAN,   .  lis,  Mass.,  1S80. 
Tort  to  recover  for  damage  caused  by  deft's  dog.   Plff.  wasldrivin;. 
on  Sunday,   Phe  dog  jumped  at  his  horse's  hei.d  and  a  sniashup  respited. 
H&LD,  that  plff.  was  doing  al  unlawful  act,  but  it  was  rrierely  a  dcondi- 
tion  and  not  a  contributory  cause  of  the  injury.   Hence  he  can  recover. 
There  is  a  statute  in  Mass.  inposinc  liability  on  the  owner  for  in- 
jury ione  by  his  dog  even  if  the  ov/ner  is  in  no  vfault  in  keeping  that 


8? 
partioular  dog.   The  case  can  only  be  distinguished  from  the 
last  case  by  regarding  the  assault  of  the  dog,  the  same  as  an  ...sault 
by  the  owner,  that  is,  by  regarding  the  attack  of  the  dog  as  a  wilful 
act  and  by  holding  that  the  remedy  for  such  an  assault  it  is  not  barred 
by  the  fact  that  plff.  'was  illegally  travelling;  or  perhaps  the  statute 
in'pcses  an  absolute  liability. 

A'ALLAO!?  V.  MERRIMACK  RlVt-jR  NAV.  &     '^:XP.  00.,  p.  114,  Mass., 

1  ^"^9 

Contrary  to  law  plff.  was  sailing  his  yacht  on  Sunday,  when  he  was 
run  into  by  steamer  of  deft.,  and  for  the  damage  he  brings  this  action. 
1st  count  alleged  that  defts.  were  careless  and  negligent;  2nd,  that  the\ 
were  wanton  and  rr;3licious.   HI'LD,-  that  plff.  cannot  recover  on  first 
count  as  his  own  illegal  act  contributed  to  the  injury.   But  on  the 
second  count,  his  title  to  an  action  would  be  independent  of  his  unlawful 
act,  for  the  injured  was  caused  solely  by  deft's  wrongful  act. 

fhe  ccurt  was  consistent  in  applying  the  same  rule  to  traveJling  ori 
water  that  it  does  to  travelling  on  land.   It  applied  the  doctrine  of 
'/;elch  y.  Wesson  to  a  case  of  intentional  running  down. 

The  statute  of  1884  so  changed  the  law  that  a  violation  of  the  Sur- 
day  travelling  la^'  is  not  a  defence  to  an  action  of  tort.   >ee  p.  115 
note. 

SUTTON  V.  TO^N  OF  WAU^ATOSA,  p.  115,  -'.isconsin,  1S71. 

Action  to  recover  for  injuries  to  plff's  cattle,  caused  by  the 
breaking  down  of  a  defective  bridge.   Plff.  was  driving  them  on  ?undcy. 
Court  granted  a  non-siiit  on  ground  that,  as  plff.  was  violating  a  stat- 
ute, he  could  net  recover.   HELD,  that  a  distant  wrongful  act  of  injured 
party  will  preclude  his  right  to  recover  only  when  it  has  the  relation 
to  his  injury  of  cause  to  effect,.   Violation  of  the  Sunday  law  had  ro 
such  a  relation  to  the  injury  in  this  case,  the  time  of  the  action  being 
wholly  immaterial,  and  the  plff's  offence  i"  no  way  contributing  to  pro- 
duce the  injury.   J.'idgment  reversed. 

The  fault  of  the  plff.  in  order  to  preclude  recovery  must,  bear  the 
relation  of  a  cause  to  the  effect  produced  by  it.   The  opinion  of  Dixon, 
C.J.,  has  carried  the  profession  against  the  ?/ass.  cases.   It  has  car- 
ried writers  abroad  against  the  J^ass.  rule  as  to  causation.   See  the 
note  on  p.  122   in  which  the  Vermont  court  holds  that  Dixon  is  right  as  to 
causation  but  also  holds  that  the  law  about  defects  in  highways  was  net 
intended  to  apply  to  illegal  travellers.   See  12   R.I.  392.   See  Eisl. 
Non.  Con.  Law  sec.  63,  S'i ;  69  Conn.  1. 
'"■ixon  was  right  as  to  causation  but  Ross  was  right  as  to  recovery. 

NESCOMB  V.  BOSTON  PROT»=CTIVF  DRPT. ,  p.  123,  Mass.|  1S8S. 

Tort  for  personal  injuries  sustained  by  plff.,  a  cab  driver,  by  a 
collision  between  his  cab  and  a  sagon  of  deft's.   T!!ere  was  evidence 
that  at  the  time  plff's  cab  was  projecting  somewhat,  into  the  street  in 
violation  of  a  city  ordinance.   Deft,  requested  judge  to  charge  that 
if  plff's  unlawful  act  contributed  he  could  not  recover.   Judge  refused, 
charged  thst  violation  of  ordinance  was  merely  evidence  of  negligence  ana 


88v 
ii  was  a  question  of  contributory  negligence.   Verdict  for  plff.   Ex- 
ceptions,,  HELD,  that  if  plff's  violation  of  law  contributed  directi,')k.-««^,. 
and  proximately  to  the  injury,  he  cannot  recover,  no  matter  whether  his 
'^illeisal  act  was  negligent  or  not.  'Question  of  negligence  is' immaterial, 
'-xceptions  sustained. 

Important  case.   decides/; th^t  plff.  may  be  barred  by  his  illegality 
'although  that  illegality  is  n^s't  negligent.   He  may  also  be  barred  by  his 
fiegligence,  without  illegali|<y.   Probably  court,  below  was  right.  ,  Innes 
on  Torts,  sec.  4S.   Authorities  in  Jaggard  on  Torts,  924  to  925;  2  Bev. 
on  Negligence,  F;d.  1S95.   If  plff.  and  his  confederate  is  engaged  in 
illegality,  deft,  (confederate)  is  undet-  no  obligation  to  use  care;  so 
held  as  a  matter  of  public  policy.   Sec.  54  to  59  Bish.  Non.  Con.  Law; 
Where  compliance  with  plff's  request,  would  involve  an  affirmance  of  hit' 
own  wrong  as  though  it  were  a  right,  his  suit  will  be, rejected. 

Notice  the  second  instruction  deft,  requested  court  to  give  and     , 
which  court  refused,  charging  insteaa  that  violation  of  law  was  merely 
evidence  of  negligence. 

In  majority  of  cases  since  this,  illegality  is  used  as  synonymous 
with  negligence,  but  those  cases  are  wrong  ana  Judge  Kncwlton  is  right 
in  drawing  the  distinction.   If  plff's  illegal  act  is  a  cause  of  the  in- 
jury, he  cannot  recover  even  though  he  was  not  negligent.   Flff .  may  be 
barred  by  either  illegality  or  negligence. 

59  3cnn.  1,  supports  this  case. 

C,  doing  an  illegal  act  is-injured  by  wilful  act  of  B  and  negligence 
of  A,  has  he  an  action?   Against  B,  yes,  whether  B  was  a  confederate  or 
not;  against  A,  yes,  provided  he  is  not  a  confederate  and  O's  illegal  act 
was  not  s  cause.   Law  does  not  recognize  and  enforce  any  duty  of  wrong- 
doers to  use  care  toward  each  other  while  engaged  in  an  illegal  transac- 
tion. 

Plff.  ;r:ay  be  damaged  (1)  by  the  wilful  act  of  a  stranger;  (2)  by  the 
negligent  act  of  a  stranger;  (3)  by  the  wilful  act  of  a  confederate; 
(4)  oy  the  negligent  act  of  a  confeaerate.   He  could  recover  in  the 
first  three  cases,  but  not  in  the  fourth. 

He  cannot  recover  against  a  confederate,  on  account,  of  public  policy 
as  the  law  does  not  recognize  and  enforce  any  duty  of  mutual  wrongdoers 
to  use  due  care  towards  each  other,  though  it  will  enforce  a  duty  not 
to  inflict  wilful  injuries.   Plff.  is  barred  by  negligent,  act  of  stran- 
ger, if  his  own  illegal  conduct  is  the  cause  or  one  of  the  causes  of  the 
damage.   He  can  usu?lly  recover  in  any  case  for  the  wilful  act. 

OHAPTSR  III, 
WTGLIG^^iCS'  ]'-'   R^^^.ATJONS  NOTARISING  DIR'^OTLY  0!)'^'  0^  '^nMTPiCT-.   ^T^MPApr- 

•''^otlons  of  Tort  frequently  arise  cut.  cf  contracts  so  that  there 
might  be  a  choice  cf  remedies  between  contract  and  tort.   This  chapter 
consists  of  cases  not  arising  out  of  contract,  though  contract  esses  v/ill 
often  be  used  to  illustrate  what  is  meant  by  :^-"]igence. 

RLYTH  V.  BIRMINGHAM  WATER'a'QRK-  on   r  ^■^n    u^  u 

^-T  v^niv.,  ..0.,  p.  IdU,- i^.xcheouer  1«^« 


84. 

••ction  to  recover  for  damage  sustained  through  negligence  of  deft's. 
in  oot  keeping  water  pipe^  and  apparatus  in  order.   The  apparatus  had 
been\  in  position  2o   years,  had  always  worked  well,  but.  just,  before  the 
accident  one  of  the  severest  frosts  on  record  occurred  and  prevented  the 
3ppara\;us  from  working  properl.y.   Question  was,  whether  there  was  any 
evidencn?  of  negligence.   HFlLD.^that  there  was  not,  as  defts.  did  all 
that  prutdent  and  reasonable  men  would  do.   They  were  prepared  for  ordi- 
nary winter  temperature,  and  are  not  negligent  simply  because  their  pre- 
cautions ^ere  insufficient  against  the  effects  of  an  unusual  frost. 

Frost;  was  so  severe  that  no  human  being  could  have  foreseen  its  se- 
verity. iC7  Mass.  dpp.  9  ^enio  ''-^-l.  ^4' /as.  107.   Cam.  Cases.   Cofr.pare 
all  three. 

Alderson's  opinion  here  is  the  most  famous  en  the  subject  of  negli- 
gence.  His  rule  as  to  negligence  is  good.   His  application  of  it  to 
average  temperature  is  not  good,  as  he  ought  to  have  considered  whether 
there  were  periodic  or  occasional  extraordinary  frosts.   In  the  latter 
case,  one  ought  to  anticipate  such  frosts  and  guard  against,  them. 

-ee  Pollock  on  Torts  1st  Ed.  47  -  add  to  Alderson's  definition, 
"Provided,  of  course,  that  the  party  whose  conduct  is  in  question  is  al- 
ready in  8  situation  that  brings  hin;  under  the  (legal)  duty  (toward  plff ) 
of  taking  care."   Requisites  to  action  of  Negligence  are  (1)  Legal  duty 
of  deft,  to  use  care,  using  legal  duty  as  distinct  from  moral  duty. 
(2)  .A  legal  duty  owing  from  deft,  to  plff.   (3)  Breach  of,  or  omission 
to  fulfill,  the  duty.   (1)  Damage  resulting  in  a  legal  sense  from  the 
breach.   See  65  Vt.  3?S  where  deft,  violated  statute  but  damage  would 
have  happened  notwithstanding  violation.   (5)  Damage  so  resulting  to 
plff. 

Pollock  2nd  '^d.  352.   S  Harv.  Law  Rev.  385,  N.2.   Holm.es  en  Com. 
Law  152  to  ISl.   107  Mass.  402.  2  Denio  441. 

'^.n   V.  'A'M.  SMITH,  p.  133,  2  Carrington  ^  Payne,  449,  1828. 

.T-Mictment  alleged  that.  George  Smith,  an  idiot  lived  with  prisoners, 
his  brother  and  sister;  that  they  neglected  and  refused  to  take  suffi- 
cient care  of  him,  whereby  he  became  weak  and  sick.   H'^:LD,  that  defts. 
were  not  legally  bound  to  take  care  of  Lhe  idiot,'  and  though  there  was 
negligence,  nevertheless  omission  without  a  duty  will  not  create  an  in- 
dictable offence. 

Important  decision.   Same  view  probably  would  be  taken  in  a  civil 
case.   Not  criminally  liable  for  neglecting  a  moral  duty,  but,  is  for 
legal  duty. 

The  defence  was  that  there  was  no  iefeal  duty  in  defts.  to  look  after 
ind  n'.aintain  their  idiot,  brother. 

Hi^31NA  V.  JUSTAN,  p.  138,  High  Court,  Queen's  Bench  Civ.,  189S 

Indictii.ent  for  manslaughter.   Prisoner  was  a  woman  between  30  and 
40  years  of  age,  who  had  been  living  in  house  of  deceased,  her  aunt  73 
years  old.   Latter  became  helpless  through  illness,  but  prisoner  gave 
her  no  food,  procured  no  medical  attendance,  and  gave  no  notice  to 
neighbors.   It  was  contended  for  the  prisoner  that  there  was  no  legal 


iuLy  in  prisoner  to  care  for  her  aunt.   HKL'},  that  it  was  certainly  the 
moral  duty  of  prisoner  to  cars  for  deceased  and  failure  to  discharge  it 
hastened  latter's  death.   Kvery  moral  duty  is  not  a  legal  duty,  but  in 
this  case,^  it  "is  certainly  within/the  spirit  of  the  decisions  to  say 
that  there  was  a  legal  duty. 

The  same  case  is  reported  Ujhder  the  name  Regina  V.  Instan  in  1  G.B. 
450  (1393)  and  in  Beale's  Gases  'on  Grim.  Law  at  page  188. 

This  is  a  weak  opinion.   The  case  does  not  expressly  overrule  the 
preceding  one  though  Goleridge  iinplies  as  mucb.   He  was  not  as  good  a 
lav/ysr  as  Oay.J.  whose  charge  to  the  jury  thaL  if  there  was  an  implied 
undertaking  to  provide  for  the  deceased,  deft,  was  liable,  is  much  abler 
than  Goleridge 's  opinion.   The  jury  found  there  was  such  an  undertaking. 
See  2  Bish.  New  GriH;.  Law,  sec.  559  to  552. 

See  83  N.Y.  464. 

Goleridge' s  remarks  about  legal  and  moral  duties  are  illogical. 
SMITH  V.  TRIFP,  p.  137,  R.L,  1830. 

Trespass  on  the  case.   Declaration,'  that  city  of  Providence  kept 
its  streets  so  negligently  as  to  causj.  water  to  flow  on  plff's  land, 
which  otherwise  would  not  have  done  so.   Demurrer.   HELD,-  that  plff. 
has  not  stated  a  good  cause  of  action.   Tt  is  not  enough  to  state  that 
deft,  was  negligent,  without  stating  what  duty  he  owed  plff.   In  the 
case  at  bar  deft's  duty  was  to  keep  the  highway  in  repair  for  travel,  it 
owed  no  duty  to  plff.  to  keep  the  highway  in  such  a  state  that  water 
should  not  flow  on  his  land. 

^he  court  here  assumed  that  plff.  could  net  recover  against  a  nei^n- 
cor  icr  water  turned  on  his  land  in  likemanner.   He  sued  the  city  undtr 
a  statute  requiring  the  city  to  repair  the  highways,  but,  he  could  not 
recover  for  the  city  owed  hiir.  no  duty  in  the  matter.   Its  duty  was  tc 
persons  travelling  on  the  highway.   Actionable  negligence  is  a  failure 
to  discharge  a  legal  duty  owed  to  the  person  injured.   To  recover  (a) 
plff.  must  show  that  hs  is  one  of  the  class  intended  to  be  protected  ly 
the  statute.  6  R.I.  211.   L.R.  9  Hx.  125.   ^o)  The  mischief  done  must 
be  of  the  kind  intended  to  be  prvented.   Authorities  in  20  S.E.Rep.  £57- 

■_.  jO  . 

J'here  are  five  requisites  for  an  action  for  negligence:  (1)  legal 
auiy  of  deft,  -to  use  care;  (2)  legal  duty  must  be  owing  from  deft,  to 
plff.   (3)  breach  of  duty,  (4)  damage  resulting  in  a  legal  sense  fron 
the  breach,  (5)  damage  so  resulting  to  plff. 

Th&  proper  sense  in  which  to  use  negligence  is  negligence  not  aris- 
ing from  the  thing  done,  but  arising  from  want  of  proper  care  and  fore- 
thought in  doing  it..   A  man  is  not  generally  speaking  liable  in  negli- 
gence for  an  omission;  as  a  rule,  there  must  already  be  som.e  existing 
relation  of  duty.   Then  liability  is  incurred  by  the  voluntary  act  of 
deft,  by  doing  something  thereby  bringing  himself  under  a  legal  duty  to 
take  care  in  doing  it. 

SO  N. A. Rep. 669.   Statute  compels  railroad  to  protect  frogs  in  yard 
so  that  people  there  should  not,  get  their  feet  caught.   Trespasser  got 


36. 
his  feet  caught.,  train  ca-;e  along  and  injured  him.   Court  held  he  could 
not  recover  as  duty  was  n.7t  owed  him. 

6  R.l,  211.   StatuL'^  provides  that  railroads  shall  erect  a  sign  at 
every  grade  crossing,  ring  the  bell  of  engine;  gives  damages  to  any  one 
injured  from  failure  to/do  this.   ?J!an  walking  along  track  is  injured  he 
cannot  recover.   The  I'av/  net  intended  to  protect  him. 

L.R.  9  'ilx.  125.  J  Cattle  carrier  had  to  have  ship  divided  into  pens, 
so  as  to  prevent  spread  of  contagious  diseases.   Carrier  neglected  to  do 
this,  cattle  were  washed  overboard  owing  to  absence  of  pens,  can  owner 
recover?   No,'  becaose  that  was  not  purpose  of  statute.   Statutes  in 
scne  states  require  that  he  who  cuts  a  hole  in  the  ice  must  put  up  a  sign 
to  mark  the  place./   Flff's  horses  got  frightened,  ran  into  a  hole  left 
unguarded,'  can  plff .  recover?   No.   85  Vermont  322. 

VAUGHAM  v.  ;^iNLOyt,  p.  139,  8  Binghami's  New  Cases.:  468,  1837. 

Deft,  owned  land  near"  cttages  of  plff.   Near  the  boundary  of  his 
land  he  has  a  hay  stack  which  was  likely  tp  ignite  and  so  was  dangerous 
to  plfi's  cottages.   Deft,  knew  it  was  dangerous  and  had  been  advised  to  ^ 
remove  it,  yet,  he  left  it  there.   It  became  ignited' by  spontaneous  com-  ' 
bustion  and  plff's  buildings  were  thereby  set  on  fire.   Judge  charged 
deft,  was  bound  to  use  such  reasonable  caution  as  a  prudent-^fsan  would 
have  exercisfcd  under  the  circumstances.   Verdict  for  plfT.    ule  nisi, 
on  the  ground  that  question  should  have  been  not  did  deft.,  come  up  to 
average  man  standard,  but.  did  he  act  bona  fide,  to  the  best,  of  his  judg- 
ment.  HELD,  that,  judge's  charge  was  correct.   Deft's  duty  was  tp  en- 
joy his  own  property  so  as  not,  tp  injure  that  of  another,  and  for  bis 
negligence  he  was  liable.   Test  of  negligence  always  is,  what  would 
have  been  theconduct  of  a  man  of  ordinarv  prudence  under  the  circumstsn- 

'^C'Q  V 
o-OG  ! 

!ri.portant  case.   In  37  Fed.  H'ep.  859  at  P.  663  Court  should'  have  said, 
"Under  similar  circumstances." 

The  law  leaves  deft's  personal  characteristics  out  of  account  anc 
applies  as  a  test  what  the  average  prudent  man  would  do.   The  jury  is 
not  to  apply  their  own  views  but,  ,Kh^i..|,hey  think  the  standard  of  socifty 
is.   39  N.B.Rep.  36  and  37  (Mass.  case.)   14  Law  Mag.  6-  Review  4th  se- 
ries  317  to  32S,  article  on  average  man.   See  Holmes  on  Com.  Law  108  to 
111. 

WeRICCITH  V.  Rfi:!?:D,  p.  142..  Indiana,  1886. 

.Action  to  recover  for  -in  injury  dona  to  plff's  nare  by  deft's  stal- 
lion.  In  some  way  the  stallion  had  escaped  from  the.  stable  and  done 
Lhe  injury  complained  of.   Verdict  fcr  deft.   ilrror  assigned,  plff. 
contending  that  deft,  was  bound  to  the  utmost  care,  deft,  contending 
he  was  bound  to  ordinary  care  only.   HELD,-  that,  ordinary  care  is  all 
that,  was  required;  what  is  ordinary  care  varies  with  the  circumstances  c 
each  case  and  refers  to  such  case  as  a  prudent  careful  man  would  take 
under  the  circumstances. 

This  case  suggests  as  a  test  what  in  fact  an  crdiriir^  and  prudent 
man  would  do  in  a  similar  case,  not  whether  deft,  bona  fide  believed  thfc. 


37. 
he  was  doing  what  an  ordinary  and  prudent  n.an  would  do.   This  makes 
the  rule  of  law  the  saine  I'or  all  cases,  but  the  amount  of  care  necessary 
varies  according  to  circumstances.   The  case  therefore  advances  the  the- 
ory  that  there  is  only  one  dgree  oi  care.   In  case  of  deft's  blindness, 
the  question  would  be,  whether  an  ordinary  and  prudent  man  suffering 
iroir  that  incapacity  would  do  what  deft.  did.   Holmes  on  zCoiii.  Law  109. 

Negligence  is  a  negative  conception  and  is  simply  means  the  absence 
of  the  cars  required.   So  there  can  be  no  degrees  of  negligence.   There 
k  a  dispute  as  to  whether  there  are  degrees  of  care.   Some  say  there 
ar^  no  degrees  of  care;  others  thatthere  are  two  degrees  of  care  and 
stiii  others  that  there  are  three  degrees  of  care.   (1)  Only  ordinary 
care  under  the  circumstances.   (2)  The  care  of  one  who  is  a  specialist 
and  that  of  one  who  is  not  a  specialist.   (3)  3reat  ordinary,  and  slight 
care.   This  is  the  old  rule.   It  was  known  to  the  Roman  Law  and  the 
early  Common  Law. 

Prof.  Smith  thinks  that  there  are  no  degrees  of  care.   He  agrees 
with  the  selection  from  the  Albany  Law  Journal  on  p.  149  of  the  Cases. 

In  torts,  negligence  is  the  absence  of  care  under  the  circumstances 
and  there  can  be  but  one  standard  of  care,  "under  the  circumstances." 

In  a  contract  the  parties  may  agree  upon  any  degree  of  cars  they 
choose.   Most  of  the  cases  which  raise  the  question  of  degree  of  care 
arise  out  of  a  contract,  and  so  the  conclusions  thereifn  reached  are  not 
necessarily  applicable  in  torts. 

There  is  a  celebrated  short  definition  by  'i^alles.J.  in  5  H.  5-  N, 
399:  "Negligence  is  the  absence  of  care  according  to  the  circumstances." 
Clerk  5-  Lindsell,  355  and  356.   Prof.  Sir.ith  thinks  that  the  best  rule 
is  that  of  ordinary  care  according  to  the  circur stances.   See  39  M.E. 
Rep.  36.-  There  is  an  interesting  discussion    Fickard  in, 14  Law  Mag. 
^  Rev.  4th  series,  pp.  317  to  328. 

CHAPTER  IV. 
Contributory  Negligence. 

^U' '■■^•'^■KLD  V.  FORRKSTSR.  p.  150,  1.1  l^^ast  60,  1809. 

Action  on  the  case  for  obstructing  a  highway,  whereby  piff.  was 
thrown  from  his  horse  and  injured.   It  appeared  that  deft,  had  left  pole 
across  part  of  t.he  road,  plenty  of  room  being  left  to  pass  by;  that  if 
plff .  had  used  due  care  he  wouldhave  seen  and  avoided  the  pole;  that,  he 
was  riding  carelessly  at.  great  speed,  and  ran  into  the  pole.   H!?LD,  that 
he  could  not.  recover.   Because  deft,  was  at  fault  is  no  reason  why  plff. 
should  not  be  required  to  use  ordinary  care  and  having  failed  to  use 
such  care  he  cannot  take  advantage  of  deft's  fcault. 

Celt,  was  negligent  and  was  absent.   Had  plff.  been  using 
ordinary  care  and  been  injured,"  he  could  have  recovered.   Here  he  was 
not  using  ordinary  c-vre.   In  fact  had  he  been  using  ordinary  care  he 
would  not  have  been  injured,  so  the  negligence  of  plff.  was  a  prox. 
cause  of  his  injury.   .41t.hough  deft's  act  was  part  of  the  cause,  plff's 
■act  was  also  a  part  of  the  cause.   Plff.  cannot  recover  when  his  act 


8P. 
was  the  sole  cause  or  when  it  is  a  part  of  the  proxintate  cause. 

Suppose  deft,  had  been  present  and  plff.  absent  fhis  horse  running 
away),  then  if  deft,  nriisht  have  avoided  the  consequences  of  plff's  neg- 
ligence and  did  not,  he  is  liable.   Courts  often  apply  the  rule  that  he 
who  had  the  last  chance  of  avoiding  the  injury  is  liable.   Tfie  court 
said  here  that  deft's  negligence  was  the  sole  legal  cause  of  the  injury. 
Apparently  they  had  that  rule  in  mind  when  they  said  that. 

CAVIS.S  V.  iVANN,  p.  151.  10  U.eesons^.   '^elsby  548,  1S4?. 

Oase  for  negligence.   Declaration  stated  that  a  donkey  belonging 
\  to  plff.  was  lawfully  on  the  highway;  that  a  wagon  of  deft,  under  nian- 
\  agen:ent  of  a  servant,  was  so  negligently  driven  as  to  run  over  the  don- 
key and  kill  him.   It  appeared  that  the  plff.  having  fettered  the  fore- 
feet of  the  donkey,  turned  it  into  the  highway.   Deft's. wagon  came  down 
a  slight  descent  at  a  rapid  pace  and  ran  Into  the  animal,  driver  being 
sofiie  distance  behind.   Judge  charged  that  even  if  plff's  act  was  ille- 
<-:l,  nevertheless  if  prcx,  cause  of  injury  was  driver's  want  of  due  care, 
action  could  be  maintained.   Verdict  for  plff.   'v'oticn  for  nesv  trial. 
H^LD,  that  as  deft,  might,  by  proper  care,  have  avoided  injuring  the  an- 
imal, he  is  liable  though  the  animal  was  improperly  there.   Plff's  neg- 
ligence will  bar  his  action  only  when  he  might,-  by  ordinary  care,  have 
avoided  consequences  of  deft's  negligence.   'f^ule  refused. 

Often  quoted.   Here  deft,  was  present  and  plff,  absent  in  contrast 
to  Butterfield  v.  Forrester,  ante.   Jury  here  found  legal  cause  was  act 
of  deft,  and  net  of  plff.   .Accident  might  have  been  avoided  by  ordinary 
care  on  part  of  plff,,  cut  deft,  was  not  in  the  exercise  of  ordinary  care 
at  the  time  of  accident.   Teft.  had  the  last  chance  to  avoid  the  acci- 
dent. 

STiliHi:^  V.  GRFiSl^iY,  p.  158,  Penn..  1872. 

Action  on  the  case  for  injury  caused  by  negligence  of  deft's  son. 
Plff's  wife  tied  her  horse  to  a  tree,  with  the  carriage  projecting  into 
travelled  part  of  the  road.   V'hil?  she  was  gone,  a  loaded  wagon  of 
deft's  came  along.   Deft's  son  the  driver,  was  behind  and  the  tean^  wa.s 
coming  along  alone.   It  ran  into  plff's  carriage,  doing  the  damage  com- 
plained of.   Judge  charged  that  plff's  negligence  cannot  be  set  up  as 
an  excuse  if  deft,  was  also  negligent.   Verdict  for-  plff.   R^rror. 
HfeLD,-  that  it  is  clear  that  in  case  of  contributory  negligence  plff.  can- 
not recover.   Judge  was  wrong  therefore  in  leaving  nothing  Lo  the  jury 
except  deft's  negligence.   Judgment  reversed.   Venirs  denove. 

The  decision  of  the  court  above  is  like  Davies  v.  Wann.   See  h.&   H. 
('''nglish)  424,' both  parties  absent  here.  ?.   Harv.  Law  Review. 

Judge  charged  thatdeft,.  cannot  plead  plff's  want  of  care  if  he  was 
negligent  hiniself.   Court  held  this  incorrect. 

Suppose  negligent  collision,  one  driver  asleep,  other  not,  could 
former  recover?   Jury  would  very  likely  find  that  latter  had  last  chance 
to  avoid  collision  so  was  liable. 

The  great  question  is,  what  occurred  at  moment  of  accident,  not  how 
the  parties  got  into  that  position,  or  how  long  ago,  but  merely  what  was 


DO 

'_■'-' . 

Iheir  relative  state  at  that  time. 

I'UFF  V.  WAHMAN.  p.  155.  Com.  Pleas.  1857.  Exchequer  Ohani.,  1S8S 

Action  for  so  negligently  navigating  a  steamer  in  the  Thames  as  to 
run  avainst  and  damage  plt'f's  barge.   It  appeared  that  the  plff.  was 
also  negligent  in  managing  his  barge  without  a  lookout.   Judge  charged 
that  ir\plff's  negligence  was  proximate  cause  of  the  injury  he  could  not 
recover,  \but  if  his  negligence  was  only  remotely  connected  with  the  in- 
jury, que^jticn  vvas  whether  deft,  by  use  of  due  cars,  might  have  avoided 
it.   Verdict  for  plff.   Rule  nisi.   HtLD,  (in  G.B.)  that  the  charge 
was  correct. \  Appeal.   HKI.D  (Rx.  Zh.)   that  the  judgment  be  affirmed. 
yere  negligence  would  notbar  plff's  right,  unless  it  were  such  that  but 
for  his  negligence  the  accident  could  not  have  happened;  nor  if  deft,  by 
exercise  of  due  care,  might  have  avoided  consequences  of  plff's  negli- 
gence. 

Celebrated  case.   Case  was  probably  decided  on  assumption  that  deft 
were  aware  that  plff's  boat  was  not  keeping  a  lookout,  and  yet  notwith- 
standing such  knowledge,  defts.  did  not  alter  their  course  so  as  to 
avoid  collision.'   Trial  Judge  said,  "Plff.  could  not  recover  if  plff's 
negligence  was  any  part  of  the  legal  cause,"  which  is  right,  but  he  also 
said,  "directly  contributed,"  which  is  misleading  or  ambiguous.   Court 
rfeiused  to  set  aside  verdict.   On  appeal  court  refused,  to  set  aside. 
Wightman.J.  (See  bottom  of  p. 169)  used  the  "but  for"  rule,  which  is 
grossly  erroneous,  because  under  that  rule,  if  there  was  negligence  of 
plff.  anywhere  in  chain  of  antecedents  he  ccula  not  recover.   Hule  of 
law  laid  down  to  jury  at  trial  was  substantially  correct,  except  that  iL 
is  not  best  to  use  word  "contributed"  or  "directly  contributed"  because 
of  liability  to  aiisapprehension.   But  plff.  cannot  recover  if  his  neg- 
ligence was  in  any  degree  the  cause  of  the  injury.   Opinion  of  'A'ightmian 
is  entirely  indefensible.   Here  both  parties  were  present.  See  Clerk 
ir   Lindsell  on  Torts  p.  ?81.   Pollock  on  Torts,  2nd  Ed.  401-2.  Court  re- 
garded deft,  as  having  had  last  chance  to  avoid  tJie  injury.   Note  crit- 
icism of  opinion  in  Vurphv  v,  Deane.   See  34  N.W.Rep.  753,  Wis.,  which 
is  contra  to  Tuff  v.  . 

The  case  arose  on  a  motion  to  act  set  aside  for  misdirection.   This 
is  the  reason  why  the  court  only  considered  whether  the  instruction  was 
correct  and  refused  to  consider  whether  the  verdict  was  against  evidence. 

Prof.  Smith  thinks  that  this  is  a  case  of  concurrent  simultaneous 
negligence.   If  the  men  in  plff's  boat  had  been  asleep  and  deft,  had 
known  it,  plff,  could  have  recovered.   Pollock  on  Torts  2nd  Ed.  401-2. 
Clerk  &   Lindsell,  p.  881. 

Tne   principal  case  is  supportable  only  on  the  assumption  that  deft, 
knew  of  plff's  negligence  and  that  that  imposed  a  duty  of  greater  care 
upon  deft,  to  lookout  for  him.   ^'Jightmah's  rule  would  permit  recovery 
where  plff-.  haa  exposed  himself  to  deft's  negligence.   '/vightman's  state- 
Tient  on  the  top  of  p.  160  is  open  to  the  objection  made  to  it  by  Aells,J. 
in  Murphy  v.  Deane.   As  to  the  second  part  ci  his  test,  namely,  that 
about  avoiding  the  result  by  deft.,  either  could  recover  from  the  other. 


90. 
See  p.  131  about  ten  lines  from  the  bottom. 

There  i,s  a  great  conflict  of  authority  as  to  whether  the  burden  oi 
proof  is  on  ihe   plf f  .  to  show  that  he  was  without  fault. 

Contribute  is  a  very  bal  wora  to  use  for  a  very  little  thing  might 
contribute,  and  still  not  be  a'  part  of  the  legal  cause.   The  word  is 
too  loose  and  "directly"  does  not  help  it  much. 
MURFHY  V.  DKANlii,  p.  160,  Mass.,  1839. 

field,  (by  ^^ells.J.)  that  the  rule  in  Tuff  v.  arjiian  is  incorrect. 
I\  implies  that  the  burden  of  proof  is  not  on  plff.  to  take  due  care  on 
his  part,  but  that  he  can  recover  whenever  aeft's  negligence  was  suffi- 
cient of  itself  to  cause  the  injury.   True  rule  is  that  plff.  cannot 
recover  if  by  due  care  he  might  have  avoided  consequences  of  deft's  neg- 
ligence, that  is,  if  his  negligence  is  proxiniate  cause.   And  the  burden 
is  always  on  plff.  to  show,  either  that  he  was  using  due  care,  or  that 
the  injury  was  in  no  way  attributable  tc  his  failure  to  use  such  care. 

There  is  much  conflict  of  authority  as  to  whom  burden  of  proof  is 
on. 

RADLFY  V.  LONiJON  5-  iM.'A.K.H.Co. ,  p.  188  Law  Hep.,  1  Appeal  Oase^ 
754,  387S. 

Action  to  recover  damages  for  destruction  of  plff's  bridge.   The 
bridge  was  over  a  side  track  belonging  to  plff.   De't's  servants  had 
run  some  of  plff's  eir^pty  trucks  on  the  siding  and  left  them.   I  one  of 
them  was  a  broken  truck,  combined  height  of  two  being  11  feet.   One  of 
plff's  watchmen  knew  they  were  there.   Next  day,  deft,  ran  some  more 
cars  on  the  siding,  pushed  the  car  containing  broken  truck  against  the 
bridge,  doing  the  damage  complained  of.   Defence  was  contributory  neg- 
ligence.  Judge  charged  that  .iury,  in  order  to  find  for  plff.  must  be 
satisfied  that  he  was  not  guilty  of  any  contributory  negligence  but  that 
injury  happened  solely  through  deft's  negligence.   "eriict  for  deft. 
Rule  nisi. 

H"XD,' that  judge's  charge  was  Loo  broaa  :ir,a  unqualified.   ■"hils  it 
is  true  in  general  that  plff.  cannot  recover  if  his  negligence  has  con- 
tributed, yet  there  is  this  qualification,  that,  even  though  plff's  neg- 
ligence may  have  contributed,  nevertheless,  if  deft,  could,  by  use  of  or- 
dinary care,  have  avoided  the  accident,  plff's   negligence  will  not  ex- 
cuss  him.   Judge  was  wrong  in  net  applying  thi^:  latter  rule  tc  the  facts 
of  the  case. 

Plff.  was  negligent  Saturday  and  continued  so  through  Sunday. 
The  deft,  was  negligent  Sunday,  was  present  and  was  in  m^otion.   Clerk  ^• 
Lindsell  p.  383  say  that  the  decisive  point  in  this  case  is  that  the 
plff.  was  passive  and  the  deft,  active,  so  that  deft,  actually  did  the 
damage,  was  the  active  cause. 

The  judge  charged  practically  that  if  there  was  any  contributory 
negligence  on  his  part,  plff.  could  not  recover.   The  court  held  this 
wrong  holding  that  plff.  could  recover  if  deft,  could  have  avoided  the 
consequences  of  plff's  negligence  by  ordinary  care;  they  go  on  the  prin- 
ciple that  thene  were  successive  acts  of  negligence. 


d 


91. 

The  rule  of  Lord  Penzance  on  p.  ISF  is  a  good  one  for  this  case, 
but  it  is  not  good  as  a  general  r^ule;  for  it  applies  only  to  acts  which 
are  successive.   He  undertook  to  Ifey  down  the  whole  law  of  contribuLor.v 
negligencii^  saying  that  he  who  has  the  last  opportunity  is  liable  if  he 
does  not  at^oid  the  consequence  of  the  other's  negligence.   Pollock  -'!04ii-5 
This  rule  evidently  won't  apply  where  the  negligent  acts  of  plff.  and 
deft,  are  siiiiultaneous.   Neither  can  recover  in  cases  where  either  or 
neither  can  a^oid  the  injury. 

In  Matthe^^B  v.  the  London  ;i.  raniway  Co.  lo  /.at  nciu  no  defence  tc 
say  that  deft,  was  not  guilty  of  the  whole  of  the  legal  cause  as  a  third 
party  was  concerned.  Had  plff.  been  that  party  he  couldn't  have  recov- 
ered. That  deftiv  is  not  the  whole  cause  of  the  injury  is  no  defence  to 
a  suit  by  a  non-negligent  third  party,  but  it  is  to  a  suit  between  the 
parties  concurring'  in  the  negligence. 

Prof.  Sniith  doubts  whether  there  was  in  fact  negligence  on  the  part 
of  the  plffs.,  but  the  court  thought  there  was.   The  jury  under  the  in- 
structions probably  thought  that  they  must  apply  the  "but  for"  rule. 
The  first  proposition  on  p.  55  does  not  distinguish  between  cause  ana 
condition.   That  proposition  was  probably  intended  to  niean  that  plff, 
is  oarred  if  his  negligence  is  in  whole  or  in  part  the  legal  cause  of 
the  action.   The  second  proposition  is  meant  for  an  explanation  of  what 
the  judge  means  by  legal  cause:  that  if  after  the  negligence  of  plff. 
which  was  earlier  deft,  had  a  chance  tc  avoid  it  by  exercise  of  crdinar.v 
care,  then  deft,  is  not  excused  on  account  of  previous  negligence  of 
plff.,  because  then  deft's  negligence  is  the  sole  cause.   Pollock  on 
Torts  8nd  Ed.  404,  405.   This  is  a  good  rule  where  case  is  one  of  suc- 
cessive negligences,  but  it  will  net  work  where  negligences  are  siiifUlta- 
neous  and  one  is  part  of  cause. 

THOMAS  V.  CUARTIt'RMAlNi'!:,  p.  167,  .u^^cu's  Bench  Div.,  1887. 

Eowen.L.J.   Plff.  in  an  action  for  negligence  must  prove  two 
things:  1st,  that  deft,  has  been  guilty  of  some  negligence;  ?nd,  that 
deft's  negligence  was  proximate  cause  of  the  injury.   Oontributory  neg- 
ligence in  plff.  only  means  that  he  hims&if  has  contributed  to  the  acci- 
dent in  such  a  sense  as  to  render  deft's  breach  of  duty  no  longer  its 
proxiiTate  cause. 

Lord  ^Jsher  had  in  mind  such  a  case  as  Matthews  v.  The  London  St. 
Tramway  Co.,  Lord  Justice  Bowen  had  in  mind  a  case  like  Davies  v.  l/ann. 

The  term  contributory  negligence  should  be  confined  to  cases  where 
plff,  and  deft,  are  concurrently  negligent.  There  the  acts  of  both  go 
to  make  up  the  legal  cause. 

It  should  have  been  said  under  Radley  v.  .lie  London  R.R.Oo.,  that 
that  case  is  generally  re&arde-^  ^s  havjn:^  settled  the  lav;  on  the  point. 
Clerk  ^   Lindseli.  3SS. 

NASHUA  IRON  ^  STIilPL  CC.  v.  WORCm'Efi  *  NASHUA  R.R.CC.  p.  1-?, 
N.H,,  1388. 

Ceclaration  alleged  that  through  deft's  negligence,  plffs  horse 
was  frightened  and  caused  it  to  injure  Ursula  Clapp;  that  she  had  recov- 


92. 
^red  damases  froii;  plff;  that  defts.  had  notice  of  and  were  requested  to 
a&iend  the  suit,.   Demurrer.   H'^-LD,  that  result  oi   previous  suit 'shows 
thiBt  piri".  was  negligent.,  so  t.he  question  is  as  to  whose  negligence  was 
Drox.in'ate  cause.   Celt's  negligence  being  found,  the  question  is,  wheth- 
er pii'f.  by  exercise  of  ordinary  care  could  have  escaped  the  injury.   It 
is  only  in  case  he  could  not,  that  he  can  recover.   Presence  or  absence 
of  Ljie  Arties  nakes  no  difference.   To  warrant  a  recovery  m  any  case, 
ability  <}i)  part  of  deft,  nust  concur  with  non-ability  on  part  cf  plfi.  to 
prevent  the  injury  by  ordinary  care.   Demurrer  overruled. 

As  to  cpntfibution  between  wrongdoers  see  Keener  on  ;...;.  ...  ^^  -IIC. 
1^°  Mass.  mk.       Keener 's  cases  on  C.3.  492  to  504. 

The  case*inakes  four  suppositions  as  to  the  presence  or  absence  cf 
parties.   The  rule  of  lavv  is  the  san^e  for  all  these  cases,  but  t,he  ap- 
plicat.ion  may  vary  with  t.he  different  circunistances.   (1)  Deft,  absent. 
Plff.  can  recover  if  he  dees  not  knew  cf  the  negligence  of  deft.,  and  is 
net  to  blame  for  net  knowing  it,  but.  there  is  a  conflict,  of  authority  as 
to  how  much  care  iie  is  bound  to  use  to  look  out  fcrthe  negligence- of 
others.  (2)   Plff.  absent.   There  the  negligence  of  plff.  is  not  a 
cause;  it  tnerely  affords  an  opportunity  to  the  deft,  to  do  the  injury. 
(3)  Both  present.   If  deft,  could  avoid  and  plff.  could  not,  deft,  is 
liable.   See  ship  case,  p.  178.   You  must  consider  the  negligence  at 
the  t.ime  of  the  injury.   Flff's  negligence  niay  be  the  cause  of  the  dan- 
ger, and  deft's  cause  cf  the  injury.   If  both  are  negligent  at  the  time 
of  the  injury,  any  previous  negligence  does  not  count. 
NRAL  V.  3ILLErr,  p.  174,  Conn.,  1S55. 

Action  to  recover  for  personal  injury  alleged  to  have  been  caused  by 
deft's  negligence.   Plff.  claimed  thi:t  deft,  was  guilty  of  gross  negli- 
gence and  so  he  was  entitled  to  recover,  notwithstanding  that  there 
iTiight  have  been  want  of  ordinary  care  on  his  part.   KSLO,  that  regard- 
less of  whether  deft's  negligence  was  slight,  or  gross,'  plff.  cannot  re- 
cover if  his  own  want  of  ordinary  care  contributed  essentially  to  his  in- 
jury. 

This  case  represents  the  great  weight,  of  authority. 

If  plff's  negligence  contributed  tp  the  injury  in  however  slight  a 
degree,  it  bars  his  recovery ,  however  gross  the  negligence  of  deft,  may 
be.   This  is  the  general  rule.   Compare  it  with  the  Ills,  rule  given  by 
Breese.J.  on  p.  176.   The  Ills,  rule  is  now  repudiated  in  that  state; 
see  S  Harv.  Law  Rev.  270  and  356,  but,  it  has  crept  into  statutes  and 
crops  up  under  different  names  in  other  states. 

Ereese,J.  in  Galena,  5-c.  .S.Co.,  v.  Jacobs,  p.  17",  Ills.,  1S5S. 

All  care  or  negligence  is  at  best,  but  relative,  -the  absence  of 
oHo  highest  possible  degree  of  care  showing  the  presence  of  some  negli- 
gence, slight,  as  it.  may  be.   The  true  doctrine  therefore  is,  that  in 
proportion  to  the  negligence  of  the  deft,  should  be  aieasured  the  degree 
cf  care  required  of  the  plff.:,  that  is  to  say,  the  more  gross  the  negli- 
gence manifested  by  the  deft.,,  the  less  degree  of  care  will  be  required 
cf  the  plff.  to  entitle  him  tp  recover^   The  degree  cf  negligence  must 


De  ireasufstj  and  sonsidered,  and  whenever  it  shall  appear  that  the  plff's 
nej<ligencs  is  compartiviely  slisiht  and  that  of  the  deft,  gross,' he  shall 
not  be  deprived  of  his  action. 

Illin^s^is  rule,  also  called  doctrine  of  comparative  ne^iiii^cnce. 
Based  on  suSposition  that  degrees  of  negligence  exist.   8  Harv.  Law  cv. 
•^79.  ?cS.   ^;ourts  often  might  have  applied  in  cases  where  this  rule  is 
said  by  courtV  to  be  applied,  the  principle  that  plff's  negligence  was  so 
psiT'Ote  as  not  \o  be  "  oart  of  the  case  in  many  cases. 

'•'ula  in  Ga\- (^  Tenn.,  that  plffs.  negligence  might  be  considered  in 
mitigatiop  of  daVages.,)  Florida  rule  in  Rev.  Stat.  (1892)  sec.  2345. 
\'V\\^^   MA^  VORRiy,  p.  175,.  U.S.,  1890. 
uit  ).r\   aSmifalty  against  the  steamer  Max  f*1orris.   Libeilant,  em- 
pic.vcia  on  board  the  boat,  had  a  fall,  through  the  negligence  of  those  in 
charge,  whereby  he  was  injured.   It  appeared  that  the  fall  was  partly 
due  to  his  own  negligence.   HELD,  that  it  is  settled  in  admiralty  law 
that  in  case  of  collision  between  two  ships,-  both  negligent,  damages 
shall  be  equally  divided.   Justice  and  public  policy  require  that  a  sim- 
ilar rule  tc  be  followed  in  all  cases  of  marine  tort  like  the  present. 
Plff's  negligence  should  not  bar  recovery,  unless  it  is  wilful,  gross  or 
inexcusable.   He  is  entitled  to  a  decree  for  divided  damages  '(whether 
exactly  one-half  or  not,  court  does  not.  decide.) 

The  case  gives  the  rule  of  admiralty  courts.   In  admiralty,  where 
plff's  fault  was  either  the  whole  cause  or  no  part  of  the  cause,  the  rule 
cannot  differ  from  conmon  law,  but  where  plff's  fault,  was  only  part  of 
the  cause,  it  differs  from  common  law.   In  admiralty,  if  each  is  part  oi 
the  cause,  no  matter  what  part,  of  cause,  each  may  n-,  -'gmages  -'"^   r?-;'/-;_ 
ded  equally. 

Here  piff .  could  not  have  recovered  anything  at  common  law,  as  he 
was  negligent  himself. 

Admiralty  courts  started  with  the  doctrine  that  in  case  of  a  collis- 
ion of  two  vessels,  damages  should  be  divided,  and  extended  it  to  cases 
of  innocent  passengers  injured  in  a  collision  of  two  vessels,  then  to  the 
case  of  a  man  injured  working  on  board  of  a  vessel,  as  in  this  case. 
Admiralty  do3s  not  divide  damages,  where  fault  is  due  entirely  tc  one 
party.   In  common  law,  the  jury  assesses  damages,  in  admiralty  the  coun 
assesses  the  damages.   This  may  partly  explain  the  difference  of  view.  . 

The  distinction  drawn  between  negligence  and  wilful  negligence, 
wanton  negligence,  etc.,  in  doctrine  of  contributory  negligence  ought  not 
to  be  drawn.   95  Ind.  293-4, ■  very  good  statement.   Also  good  discus- 
sion in  ^  3ycl.  of  Law  80-1,  sec.  38. 

Three  rules,  common  law  rule,  admiralty  rule.  Ills,  ruj^e  of  compar- 
ative negligence.   In  some  states  statutes  have  been  passed  making  the 
damages  recoverable  proportionable  to  amount  of  cause  furnished  by  negli- 
gence of  .ether  party.   3  Harv.  Law  Rev.  288. 

'i-e   are  not  now  considering  whether  or  not  t  'luiy   is  imposed  on  a  man 
tc  anticipate  negligence  of  antcher. 

ODIMBY  v.  IR^OODBURY,  p.  134,  ;^.H.,  1885. 

Debt  tc  recover  double  damages  sustained  by  piff.  from  being 


94. 

Oebt  Lo  recover  double  datrages  sustained  by  plfl.  from  being  bitten 
by  det't's  dog.   Action  was  brought  under  statute  providing  that  any  per- 
son injured  by  s  dog  shall  recover  double  damages,  unless  engaged  in 
trespass  or  other  tort  at  the  time.   IL  was  uncertain  whether  plff.  used 
lue  care  or  not.   Judge  charged  that  on  this  depended  whether  or  not  he 
could  recover.   Plft .  excepted.   HRID,  that  reasonable  construction  of 
the  stiitute  shows  that  doctrine  of  contributory  negligence  is  not  barred 
out,  notwithstanding  that  the  words, ■  taken  literally,  xean  that  deft,  is 
absolutely  liable  unless  plff.- were  comniitting  a  tort.   The  statute  is 
to  be  interpreted  with  reference  to  the  general  principle  of  law  that  a 
party  cannot  recover  dairages  for  negligence  of  another  if  his  own  neg- 
ligence contributed. 

Dourt  here  reads  law  of  contributory  negligence  into  the  statute; 
stitute  is  often  to  be  taken  as  subject  to  coinmon  law  rules.   This  is 
a  very  strong  move  on  part  of  court.   '''here  statute  itrposes  liability  on 
a  aian  if  he  fails  to  do  a  certain  thing,  as  a  general  rule  courts 
will  understand  Legislature  meant  that  he  is  to  be  liable  only  to  plffs. 
who  are  not  guilty  of  negligence;  question  en  Legislative  intention. 
See  Donovan  v.  R.R.Go. 

aLfi:V|i;LAND  rolling  '/ill  CO.  v.  OORRIGAN.  p.  367,  Ohio,  1888. 

Plff.  below,' an  infant  under  14,  sued  the  Vill  ?.o.   for  injuries  in- 
curred through  latter 's  negligence.   Tefence,  that  injury  was  caused 
by  boy's  negligence.   Judge  charged  that  the  boy  would  be  held  only  to 
such  care  and  prudence  as  a  boy  of  his  age, •  of  ordinary  care  would 
use  under  the  circumstances.   Verdict  for  plff.  'Exceptions.   HFLD, 
thst  though  other  rules  have  been  favored  by  some  courts,  the  one  ex- 
pressed by  court  below  is  best,   Children  constitute  an  exceptional 
class  Oi  persons,'  and  less  care  is  expected  of  then?  than  of  adults.   Or- 
dinary care  afl4-)9P-«4efi39-aF6  for  them  is  that  degree  of  care  which  chil- 
dren of  the  sanp.e  age,  of  ordinary  care  and  prudence,  are  accustcnied  to 
exercise  under  similar  circuir.stances.   Judgment  affirn-e:-'. 

Prevailing  rule.   Makes  children  a  distinct  class.   ■;  child  is 
held  to  the  saire  end  not  to  a  greater  degree  of  care  than  is  usually 
exercised  by  children  of  the  sair.e  age. 

This  case  settles  the  rule  where  the  child  is  a  plff.   Probably  the 
same  rule  would  hold  in  a  case  svhere  the  deft,  tvere  a  child. 

There  are  three  rules  possible  for  children:  (1)  Care  of  adults; 
(?)   No  care  at  ?-ll;  ('^)   Oare,  usually  exercised  by  children  of  the  same 
age  as  the  one  in  question. 

■^^Om   V.  DRY  C00'<  ^c.  CO.,  p.  139.  M.Y..  1389. 

Action  to  recover  damages  for  alleged  negligence  in  causing  death 
of  plffs  intestate,  a  child  of  7  years,  3  or  ■^  mos.  old.   Plff.  was 
non-suited  on  the  ground  that  a  child  of  that  age  was  sin  juris,  and  the 
act  of  the  child  here  was  contributory  negligence.   Appeal.   H''''LC,  thri. 
the  question  should  have  been  subiritted  to  the  jury.   It  cannot  be  as- 
serted as  matter  of  law  that  a  child  7  years  old  is  sui  juris.   There  is  ' 
no  fixed  period,  but  is  always  a  question  of  fact  for  the  jujpy,  the  bur- 


9t 


den  rirst  beini^   on  ^.^ll,   uj  =;ivi:>  some  evidence  ourju  nic  H-rLy  injured 
was  not  capable  of  exefcising  judgment  and  discretion.   If  child  was 
chsrgeable  witti  care,  jury  should  have  determined  whether  she  acted  with 
that  degree  of  prudence,  which  might  be  reasonably  expected,  under  the 
cii'cuaistances,  of  a  chila  of  her  years.   Judgment  reversed. 

It  is  always  a  question  for  the  jury  as  to  how  much  care  the  child 
in  question  cugnt  to  iiave  used,  still  the  child  may  have  been  so  young, 
in  some  oases,  as  to  justify  a  judge  in  assuming  as  a  matter  of 
fact,  that  the  child  was  not  guilty  of  contributory  negligence,  as  in 
•^3  Pacific  Reporter  2^.   Here  the  question  was  properly  submitted  to 
f^--  jury.  *! 

In  criminal  law  there  is  a  conclusive  rule  that  a  child  under  seven 
cannot  commit  2  crime.   In  torts  there  is  no  such  rule  as  to  care.   The 
rule  is  that  the  child  should  use  such  care  as  an  average  child  of  that 
age  would  use  under  the  circumstances. 

It  is  not  a  hardship  to  leave  children  outside  of  the  operation  of 
the  ccn.tr ibutory  negligence  rule,  as  that  rule  was  not  intended  for  the 
benefit  of  the  deft.,  and  deft,  is  notliable  anyway  unless  he  was  negli- 
gent. 

An  adult  is  bound  i.G  use  such  care  as  an  average  aduli,  uc-Ji...  use 
under  the  circumstances,  unless  a  distinct  defect  or  manifest  incapacity 
be  Shown,'  for  example,  blindness.   Ihe  rule  for  a  blind  man  would  be, 
the  care  that  a  careful,  prudent  blind  man  would  use  under  the  circun- 
stances.   Obviously,  that  might  be  more  than  a  man  without  such  defect 
would  use.   ^ee  Holmes  Com.  law  109,  110. 

Contributory  negligence  is  as  much  a  bar  to  an  action  under  a  stat- 
ute as  at  common  law,  save  where  the  statute  points  out  an  actual  liabil- 
ity, for  instance,  in  32  H. R.Rep.  ^^.7 ,   a  statute  required  that  shafts  be 
fenced  in  and  provided  the  damages  for  an  accident  where  they  were  not 
fenced  in.   Contributory  negligence  was  not  allowed  as  a  defence,  as 
the  statute  was  presumed  to  be  intended  for  the  benefit  of  workmen  who 
•.vers  negligent. 

'.'here  a  child  is  hurt  by  the  negligence  of  another  four  classes  of 
cases  may  arise:  (1)  action  by  the  child  for  his  own  benefit  and  defence 
negligence  of  child;  (2)  same  action  as  one,  and  defence  imputed  negli- 
gence, that  is,  negligence  of  parent  or  guardian,  or  one  standing  in  the 
relation  of  parent,  etc.;  (8)  action  by  child's  friend  or  parent  for 
child's  benefit  for  less  of  service  and  other  rights.   Cefence,  parent's 
own  negligence;  i^)   same  action  as  in  three,  and,  defence  that,  parent  is 
barred  by  negligence  of  child. 

There  is  also  the  case  where  a  child  is  the  plff.,  i.--.  iio^^ii^enl.  and 
also  a  trespasser.   Ths---  -''•.'■■■erent  cases  sre  brought  in  the  cases  and 
lectures. 

ST^^IINVKT^'  V.  KI^LLY,  p.  191,  Indiana,  1S80. 

Action  for  assault  and  battery.   Deft,  requested  that  the  jury  be 
asked  whether  fault  or  negligence  of  clff .  contributed  in  any  way  to  the 
injury.   Judge  refused.   Appeal.      --[iC,  that  the  refusal  was  right 


96. 
Tne  jocu'ine  oi   oonLributory  negligence  has  no  applic^ion  to  Ihe  case  of 

an  assault  and  bi^ltery,  for  person  so  assaulted  is  under  nc  obligation 
to  avoid  the  samq  by  care,  and  his  want  oi'  care  in  nc  sense  contributes 
to  the  injury.   iHe  cannot  be  deprived  ot   his  redress  on  the  ground  that 
he  took  no  care  to  avoid  the  invasion  oi'  his  right. 

Contributory  negligence  is  no  defence  in  an  action  for  intentional 
injury.   There  is  no  duty  to  avoid  the  results  of  an  other's  intentional 
injury,  but  one  /must  use  due  care  after  being  injured,   1  '^'edgwick  on 
Damages,  8th  E'd|,  sec.  204. 

To  illustrate,  suppose  A  intentionally  wounds  B,  B  sees  he  is  about 
to  be  injured  mi   does  not  avoid  it.   /Afterwards  he  is  negligent  in 
treat.iient  of  wiund;  it  increases  his  injury  from  ^250 -to  $1,000.  B 
brings  suit  fcjir  personal  injuries,  A  pleads  contributory  negligence,  that 
B  might  have  slvoided  ail  injury.   3  can  recover  $250. 

Wanton  ok-   reckless  negligence  is  a  mesningless  terjri  and  the  author- 
ities which  ^^llow  a  negligent  plff .  to  recover  for  it  are  not  to  be  sup- 
ported.  By/ wilful  negligence  the  courtii  mean,  'A'here  a  n:an  knowingly 
o.T:its  to  do  .'his  duty  in  the  full  consciousness  of  the  consequences.   It 
is  not  desirable  to  have  this  niiddle  ground.   ?5  Ind.  293  and  294  con- 
tains a  careful  stateirent  of  the  nrdddle  ground.   See  idso  on  middle 
ground  Am.  &.   Eng.  Encycl.  of  Law  Vol.  4,  p.  SO-1,  par.  36. 

Flff's  contributory  negligence  must  be  in  whole  or  in.  jart  the  legal 
cause  of  the  daiiage,  but  just  what  the  legal  cause  is  is  a  different 
point,  and  when  it  is  once  settled,  it  does  away  with  all  difficulties 
of  contributory  negligence.   Contributory  negligence  only  arises  in 
cases  '.vhsre  the  legl  cause  is  a  conipound  of  acts  of  plff.  an'd  deft. 

A  rule  is  coniing  in  by  statute  in  sorre  states  that  plff.  niay  recovtr 
in  proportion  to  his  negligence,  thfi  less  the  negligence  the  aiore  the 
recovery.   I'he  difficulty  of  this  rule  is  in  apportioning  ttie  dan:3ges. 
The  penal  theory  of  explaining  contributory  negligence,  namely,  thst  p]ff 
is  guilty  and  so  must  be  punished  has  an  element  of  truth  in  it. 
Harv.  Law  Rev.  258,- article  by  -jchcfield.   The  idea  is  to  induce  people 
to  live  up  to  the  law;  the  punishment  for  not  dons  so  is  less  of  their 
right  of  action. 

mm   v.  ANTHONY,  p.  194,-  Penn.,'  13B5. 

Case  for  death  of  a  horse  alleged  to  have  been  caused  by  negligence 
of  aeft.  in  not  keeping  in  repair  a  fence  whereby  plff's  horse  escaped 
and  ?/as  injured.   Plff.  clain;ed  that  th^re  was  an  agreement  whereby 
deft,  was  to  keep  the  fence  in  repair.   Plff  knew  the  fence  was  down, 
when  he  put  his  horse  cut  tc  pasture  at  night.   Judge  charged  that  del\.. 
was  liable  if  he  failed  in  his  duty  to  keep  up  the  fence,  and  refused 
to  charge  with  regard  tc  plff's  contribui-ory  negligence.   :■  LD,  that 
this  was  error.   Action  was  net  for  breach  of  contract,  but.  was  an  ac- 
tion of  tort  tc  recover  daiiiages  for  a  loss  caused  by  deft's  negligence. 
Negligence  being  gist  of  the  action,  contributory  negligence  will  bar  re- 
covery.  Plff.  should  have  sued  for  the  neglect  tc  fence,  it  being  a 
breach  of  duty  and  the  court  logically  would  have  had  to  let  hiff  reccvc  . 


97. 

Doubtful  if  the  defence  of  contributory  negligence  should  be  al- 
lowed where  there  has  been  ■.:.   breach  of  contract. 

The  case  is  contra  to  Kellogg  v.  The  Railroad. 

In  Tonovan  v.'f^.R.  deft,  was  bound  to  keep  fence  by  statute;  here,, 
deft,  was  bound  to  keep  fence  by  contract.  That  was  case  of  a  statute 
and  this  was  s  case  of  private  iontract. 

DONOVAN  V.  HANNIBAL  &,'ST.  JOSEPH  K.H.CO.,  p.  1.85,  ;asscuri,  '38. 

Action  for  double  damages  under  statute  requiring  Rs.  to  maintain 
fences  along  the  line  where  it  passes  through  enclosed  land,  and  pro- 
viding that  they  shall  be  liable  for  double  the  damage  done  to  animals 
through  failure  to  coirply.   It  acpeared  that  deft,  negligently  delayed 
in  building  such  a  fence  by  plff's  land.   Flff,  finally  turned  cattle 
into  the  field  and  owing  to  absence  of  fence  they  strayed  on  track  and 
were  injured.   Deft,  offered  no  evidence  but  requested  court  tc  charge 
that  if  plff.  put  his  cattle  into  the  pasture  knowing  that  there  was  no 
fence,  he  was  guilty  of  contributory  negligence  and  could  not  recover. 
Deft,  inswered  plff's  charges  only  by  a  general  denial.   HFLD,  thst  the 
charge  was  properly  refused,  as  contributory  negligence  was  not  pleaded. 
Further  the  charge  requested  is  bad  because  it  did  not  leave  question  of 
negligence  to  jury.   Further  plff.  had  a  right;  to  pasture  his  cattle 
there,  which  he  could  not  be  deprived  of  by  deft's  failure  in  its  duty, 
even  though  aware  of  its  failure. 

The  Legislature  had  in  ir.ind  passengers  also.   ''''e  are  to  look  at  na- 
ture of  act  prohibited  and  reason  why  prohibited.   I'^hat  do.  the  words 
mean  when  usedin  this  particular  statute?   And  for  this  particular  pur- 
pose?  To  read  doctrine  of  contributory  negligence  into  this  statute 
would  make  the  statute  nugatory.   28  Mich.  515,-15.   Use  of  land  by  its 
owner  is  regarded  as  so  important  that  owner  is  less  restricted  than  in 
use  of  his  chattels.   Legislature  intended  precisely  that  the  owner 
should  not  be  deprived  of  the  use  of  his  land.  ^se   Krum  v.  Anthony, 
post.   Authorities  are  with  Donovan  v.  H.R.   Here,  pJif.  knew  perfectly 
well  that  deft,  had  not  complied  with  th^-  law. 

KI-iLLOGG  V.  CHICAGO  &   K.'^.R.R.CC,  p.  19S,  :"is.,  1S70. 
Action  to  recover  damages  for  destruction  of  stables,  etc. ,  by 
a  fire  alleged  to  have  originated  in  neglect  of  deft.   Fire  was  commu- 
nicated by  sparks  froir  engine  to  dry  grass  which  had  been  allowed  tc  ac- 
cumulate on  deft's  land  and  thence  passed  to  similar  grass  on  plff's 
li:nd  (allowed  tc  accumulate  accoriing  to  custofn  among  the  farmers);  a 
strong  wind  aiding  it  until  it  reached  the  buildine  in  question.   Ver- 
dict for  plff.   Appeal.   HirLD,  that  the  instructions  of  court  below, 
leaving  it  tc  jury  to  say  whether  deft,  was  negligent  in  leaving  dry 
grass  there,  was  undoubtedly  correct;  also  refusal  of  court  below  to 
chirge  that  plff's  leaving  dry  grass  on  his  land  was  contributory  negli- 
gence,' was  proper.   Doctrine  of  contributory  negligence  does  not  apply. 
Plff.  was  not  obliged  to  abandon  the  ordinary  and  proper  way  of  using  his 
land,  simply  in  order  to  avoid  possible  consequences  of  deft's  negligence 

55  i>i.'/t.R:ep.  395  (397-3),' plff.  owned  hay  a  mile  away  from  deft's 


98. 
Slack.   Dert.  net^li^Jently  set  fire  to  his  stack.   Pllf.  saw  the  fire, 
thouehtit  would  reach  his  hay  but  took  no  precautions.   Court  held  that 
if  plff.  by  due  care  cou,d  have  saved  his  hay,  he  could  not  recover. 
How  distinguish  t.hat  case  from  Kellog«/v.  R.R.?   A  distinction  is  drawn 
between  present  and  imniediate  danger  ahd  possible  or  probable  only. 

■"f'he  principal  case  is  right,  buV  there  is  a  conflict  of  authority 
on  the  point.   Prof,.  Smith  thinks  i/,  is  right.   Also  that  Lcker  v.  Da- 
ircn  is  right.  .'-   man  cannot  by  his/own  negligence  inipose  upon  another 
the  duty  of  abandoning  the  use  of  h'is  own  property,  but  after  a  danger  is 
\set  in  notion  by  the  deft.,  the  plrf .  is  bound  to  dc  all  he  can  to  avoid 
ks  effect,  as  in  the  case  of  firp.   Rogle  v.  the  R.R.  and  Loker  v.  Ca- 

.*  A  railroad  uses  a  dangerous  agent,  on  its  premises  and  must  provide 
proper  safeguards  against  the  danger  and  damage  created  by  its  own  act. 
The  ad.iacent  land  owner  as  in  Kellogg  v.' R.R.  is  doing  nothing  of  that 
kind  and  is  net  bound  to  provide  safeguards  against  probable  future  harm, 
it  is  enough  to  hold  him  bound  to  try  to  avoid  damage  after  the  damage 
has  been  begun.   He  may  make  all  beneficial  us=  of  his  land  although  the 
i^.H.Oo.  is  using  a  very  dangerous  agent  on  its  premises;  no  duty  for 
him  to  refrain  on  that  account. 

ON  30NTR1BUT0RY  N?:3L[Gs^NCS  IN  GFINRRAF... 

•■here  there  is  a  compound  legal  cause  made  up  in  part  by  negligence 
01  plff.  and  in  part  by  that  of  deft.,  is  the  only  case  where  the  doc- 
trine of  contributoryjnegligence  comes  in.   Contributory  negligence  had 
better  be  confined  to  cases  where  the  legal  cause  is  a  compound  of  plff 't 
and  de£t's  ntigiigences.   Contributory  negligence  is  simply  s  branch  of 
doctrine  of  causation.   £1  H.-V.R.  8S5,SS8. 

Piff's  negligence  need  not  be  sole  cause;  enough  to  bar  recovery, 
if  it  is  part  of  the  legal  cause.   Beven,  1st  M.-  135,  137,  criticises 
"Contributory".   ('«hen  a  third  person  has  been  injured  by  accident 
brought  on  by  negligence  of  two  persons,  court  allowed  recovery  from  him 
whose  negligence  began  to  operate  first,  and  who  was  not  present  at  the 
time  ana  had  no  opportunity  to  avoid  the  accident  at  the  time.   '^Vhen 
suit  is  between  the  actual  parties  court  will  rather  consider  doctrine 
of  last  chance  to  avoid  the  injury. 

Prevailing  view  is  that  of  Neal  v.  Siilett,  ante  1?''.   Possible 
theories:  (IL  Plff.  is  barred  if  substantial  fault  of  piff.  is  found  ary- 
»vhere  in  a  chain  of  antecedents;  "but  for"  rule.  (2)   Illinois  Doctriie. 
(3)  Florida  view  that  the  previous  negligence  of  piff.  would  be  consid- 
ered in  mitigation  of  aamagesonly.   (O  Coctrine  of  Adniralty,  dividin. 
the  damages  equally.   (5)  (Guery)  If  plff's  prior  fault  is  in  a  moral 
point  of  view  worse  than  deft's  subsequent  fault,  plff.  cannot  recover; 
probably  no  court  has  adopted  this  last,  alttfcugh  decisions  may  often 
have  been  unconsciously  influenced  by  it. 

Impossibility  of  equitable  apportionmient  of  damages  between  the  par- 
ties in  a  common  law  action  is  one  reason  for  adopting  theory  in  Neal  v. 
Cillett.   Admiralty  rule  is  called  .justltia  rusticorum.   CcMmcn  law 
courts  do  not  care  to  adopt  admiralty  rule  dividing  the  damages  equally 


/I 


becauss  sumpathies  of  jury  mi^ht  be  with  piiT.  who  was  in  fault.   Neal 
V.  3.  rule  is  soaietinifs  called  the  "Penal"  theory;  bettec-  be  called  Pre- 
ventative rule.   See'"Schofield  in  3  Harv.  Law  Rev.  270:  "Ultimate  Jus- 
tification of  rule  ia  in  reasons  of  public  policy,  viz.,  desire  Lc  pre- 
vent accidents  by  inducing  each  niember  of  connnunity  to  act  up  to  the  due 
care  required  by  la;^^"   To  say  that  plff.  is  barred  where  he  is  a  wrong- 
doer is  not  a  corrgsct  use  of  word  "wrongdoer."   In  many  cases  plff.  by 
his  own  want  of  cate,  although  he  cannot  sue,  neither  is  he  liable  to  be 
sued.   His  contributory  negligence  does  not  always  imply  a  wrong  on 
plff's  part  which  makes  him  liable  to  be  mulcted  in  damages.  2   Jag.  on 
■!..  p.  960.   Pollock.  2nd  ^d.,  160. 

Flea  of  contributory  negligence  admits  deft's  breach  of  duty  towar. 
plff.  but  alleges  that  plff.  is  barred  by  his  own  concurrent 
negligence.   Defence  of  consent  is  no  admission  of  breach  of  duty  en 
part  of  deft,  toward  plff. 

Read  carefully  opinion  in  Nashua  Co.  case,  ante  15R  of  the  Gases. 

OFAPT'^R  IV.. 

[ypi     -ligknop:. 

This  heading  might  perhaps  better  be  imputed  contributory  negli- 
gence.  Imputed  negligence  is  a  subject  on  which  there  is  a  conflict  cf 
authority. 

TH"^:  B^'RHINA.  .ourt  cf  Appeal.  1S87. 

Three  actions  brought  against  owners  cf  steamer  Eernina  o.y  rcpressn- 
tatives  of  three  persons  killed  in  a  collision  between  that  vessel  and 
another,  both  being  negligently  navigated.   One  of  the  persons  was  a 
passenger,  another  was  an  engineer,  net  responsible  for  accident,  third 
was  second  officer,  himself  to  blame  for  the  collision.   Lower  court 
held  plffs.  could  not  recover,  on  authority  of  Thorogood  v.  Bryan.   Ap- 
peal.  HELD,  that  owing  to  contributory  negligence  on  part  of  second  of- 
ficer, his  representatives  cannot  recover.   As  to  others,  question  turns 
on  whether  negligence  of  those  in  charge  of  their  boat  is  to  be  imputed 
to  their,  so  as  to  defeat  recovery.   It  is  not,   Thorogood  v.  Bryan  was 
wrongfully  decided.   I^leglect  of  cimibus  driver  or  steamboat  officer  can- 
not be  imputed  to  passenger.   ''.here  latter  is  injured  by  combined  negli- 
gence of  the  person  in  charge  of  the  conveyance  he  is  in,  and  the  one  in 
charge  of  another  conveyance,  he  can  recover  against  either  or  both. 
Theory  of  identification  of  passenger  with  negligent  driver  is  a  fallacy 
and  a  fiction,  contrary  to  sound  law. 

This  case  is  called  Is'ills  v.  /Armstrong  in  the  House  cf  [,ords. 

Thorogood  v.  Bryan  was  law  in  England  for  -10  years.   It  is  over- 
ruled by  the  Bernina  Ccise.   It  was  rejected  in  the  :  .  .  soon  after  its 
decision  and  is  now  generally  rejected. 

In  the  principal  case,  the  engineer  could  not  sue  nis  employer  for 
negligence  of  his  fellow  servants,  but  he  could  recover  from  either  of 
the  joint  wrong  doing  fellow  servants  and  from  the  other  vessel.   If 
these  wrongdoers  were  conscious  cf  their  guilt,  neither  of  them  could  re- 
cover contribution  fron;  the  others.   116  v\/^.   PS5  fcilcy/s  the  Bernina, 


100. 
ihere  the  ne>3lii>ence  of  a  hack  driver  uab  n^i   lii.puosd  Lo  Lhe  pasben^ai:". 
It  is  the  iealinM  case  on  the  subject.   !"ne  passenger  there  had  no  con- 
trol of  the  dfivsr. 

ouppose  a  friend  takes  you  out  to  drive,  is  his  negligence  to  be 
imputed  lo  you?   i>io.   A  wife  would  probably  be  barred,  but  the  view  is 
's;rowin,g  that  the  husband  and  wife  are  not  one  in  la.v  and  probably  in 
sQ.T.s  jurisdictions  the  wife  could  recover. 

If  a  passenger  gives  directions  which  are  followed  by  the  driver 
the- passenger  would  probably  be  barred  by  his  own  negligence.  •  ?.c  if 
he  is  sitting  beside  the  driver  and  does  not  warn  hin:  of  a  danger  which 
the  dPiver  does  nkt  see,  he  is  barred. 

/■  person  who  is  riding  in  a  public  conveyance  is  net  bound  to  en- 
quire into  the  antecedents  of  the  driver,  but  if  he  started  out  with  a 
driver  intoxicated  and  n-anifestly  unfit  to  drive,  he  v*ould  be  barred  by 
his  own  negligence  and  not  by  any  doctrine  of  imputed  negligence.   In 
fact  the  doctrine  of  imputed  negligence  is  nc.v  exploded,  but  personal 
negligence  is  still  a  bar. 

In  PI  S.W.Rep.  274,  two  persons  were  engaged  in  a  joint  undettakir.t. 
one  was  driving  a  wagon  and  the  other  sitting  in  the  rear  leading  a  horse. 
Owing  to  the  negligence  of  the  driver  and  a  third  party,  the  one  in  the 
rear,  a  blind  man,  was  injured.   HF:LD,  tr.at  the  blind  man  cannot  recov- 
er.  If  two  persons  are  engaged  in  a  joint  undertaking,  each  is  respon- 
sible for  the  negligence  of  the  other;  they  are  agents  of  each  other. 

In  the  Bernina  the  engineer  was  not  a"  principal;  he  and  the  second 
officer  were  only  fellow  servants,  not  principals  at  all.   The  negli- 
gence of  a  servant  when  engaged  in  the  business  of  a  rraster  is  imputable, 
to  the  master. 

If  8  man  sends  a  box  by  a  freight  train  on  the  F.  railroad  and  there 
is  a  collision  with  the  B.&  U.,   both  railroads  being  negligent.,  can  he 
sue  the  8.&  U.,   or  is  he  barred  by  the  negligence  of  the  " .  '  llroad,  or 
of  its  agents?   69  N.Y.  470  at  ^t82  and  4SH.  HI^LD,  that  h^  i.   oarred, 
though  if  he  had  been  a  passenger  suing  for  personal  injuries,  he  would 
not  be  barred.   27  HI.  Rep.  1111.  This  rule  will  probably  be  followed 
generally.   The  reason  why  the  passenger  could  sue  is  that  there  is  no 
bailment. 

NEV'MAN  V.  PHILLIPSBURG  HOPS'?:  CAR  OC,  p.  n? ,   N.J...  1890. 

Plff .  was  a  child  two  years  old,  in  the  custody  of  her  sister  who 
was  ?2.      Left  slone  for  a  fev;  frinutes,  the  child  got  in  the  way  of  one 
of  deft's  cars  and  v/as  injured  through  negligence  of  driver.   Question 
was  whether  neglect  of  person  in  charge  of  plff.  should  be  imputed  to 
plff.  so  as  to  prevent  recovery.   HELD,  that  it  should  not.   Person  in 
charge  is  not  infant's  agent,  and  so  infsnt  is  not  responsible  for  his 
misfeasance.   A  very  young  inf.-j-nt  cannot  be  charged  with  negligence  hiir.- 
?.:lf,  much  less  by  substitution.   Being  in  no  sense  the  blamable  cause 
of  his  injury,  he  can  recover  in  a  case  like  this. 

A  child  of  two  years  cannot  appoint  an  agent.'  The  only  reason  why 
one  is  barred  by  an  agent's  negligence  is  because  he  appoints  the  agent. 


101. 
ciUL  in  Lfis  case  oi  an  ini-inL,  ine  law  appoinis  the  agent  or  guardian  to 
protect  him,  and  net  to  injure  him,'  so  the  child  ought  not  to  be  affecte. 
by  the  negligence  of  the  parent  or  guardian,  or  other  person  standing  in 
the  relation  of  parent.   {^ut  to  hold  this  there  is  no  need  of  going  into 
anv  doctrine  of  isiputed  negligence.   The  case  can  be  decided  on  the  au- 
thority of  Cavieqf  v.  Mann. 

HARTFlilC  V.  ROE^tR  referred  to  on  p.  21;-]  of  the  Cases  is  still 
la'A  in  New  York  and  somewhat  in  Mass.   The  argument  for  that  case  is 
that  the  father  could  not  recover  for  the  result  of  his  own  negligence. 
But  in  legal  theory  the  money  belongs  to  the  child,  and  will  be  usea  for 
the  benefit  of  the  child,'  although  in  fact,  the  father  generally  gets 
the  benefit  of  it.   On  theory  the  Newman  case  is  right  and  Hartfield  v. 
'^oper  is  wrong,  but  the  point  is  in  conflict. 

Bi'I.L'^FONTAINF  S  INC.  R.R.OC.  v.  -^nY   ,  ,.  13,  Ohio,  1363. 
•sich,.i.   The  reasons  for  the  doctrine  of  contributory  negligence 

au  i!ju  ii^Mi.v  m  the  case  of  infants.   The  Infant  has  not  ^.c-.!:  -uilty  of 
any  wrong  hiaiself,  and  it  is  not  .just  to  make  his  personal  rights  de- 
pendent on  good  or  bad  conduct  of  others.   Can  it  be  true  that  if  only 
one  person  offends  against  an  infant,  latter  has  his  action,  buL  that 
if  twc  so  offend,  their  faults  neutralize  each  other,  and  he  is  without 
reaiedy?   He  should  have  action  against  both. 

GLA^'^'-Y  V.  Hf^STONVILL'^  <^c.  R.R.Cc,  p,  813,  Fenn,  18S8. 

Action  to  recover  for  loss  of  son's  services  through  his  beirg  hurt 
by  a  car  of  deft's  .   The  son  was  four  years  old  and  was  alone  In  the 
street  at  the  time  of  the  injury.   [;eft.  requested  court  to  charge  that 
kno/dngly  to  allow  a  child  of  that  age  to  wander  alone  in  the  street  is 
such  negligence  in  parent  as  will  prevent  him  froir.  recovering  in  a  case 
like  this.   Court  refused.   Verdict  for  plff.   I'.rror.   H-:LD,  that 
where  a  parent  by  negligence  contributes  to  loss  of  child's  services,  he 
cannot  recover  froii  the  other  wrongdoer.   Plffs.  allowing  child  to  go 
about  alone  was  breach  of  parental  duty,  and  as  such,  negligence  in  law. 
Hence  he  cannot  recover  and  charge  requested  should  have  been  given. 

in  the  Newman  case  the  actioni  is  by  the  child  for  his  own  benefit; 
here  the  action  is  by  the  parent  for  the  loss  of  service.   Both  actions 
can  generally  be  brought.   The  Newman  case  held  that  if  the  child  is 
negligent  the  child  is  not  barred,  but  in  this  case  thai  the  father's 
negligence  will  br-;r  the  father's  action  for  his  own  benefit.   The  doc- 
trine of  "lassey  v.  R.R.Cc.  is  we.ll  settled.   The  Newman  case  and  "A'y- 
Tcre  v.  i^ahaska  Co.  are  disputed.   The  instruction  in  the  principal 
case  should  have  added  "that  the  situation  of  child  must  be  regarded  in 
whole  or  in  part  as  the  legal  cause  of  the  accident."   7  Cent.  Law 
Journal,  313;  1  S.&  R,  on  Negligence  sec.  7?,  n.  3;  Beach  on  Negligence 
2nd  Rd.,.  sec.  132  tp  135. 

The  weight  of  authority  is  that  a  parent  is  barred  by  the  negligence 
of  the  child.   59  Fed.  Rep.  423, •  55  Fed.  Rep.  39.   The  latter  case  held 
that  the  parent  was  barred  when  the  child  y/as  sc  far  negligent  that  he 
could  not  maintain  an  action  for  himself. 


102. 

The  child  is  not  identified  with  the  father,  the  father  is  not  lia- 
ole  foV  his  torts,  and  recovery  goes  in  theory  for  the  benefit  of  the 
child,  30  there  is  really  no  reason  why  the  child  is  barred  by  the  par- 
ent's ne&iigence,  but  he  is  generally. 

^YMOR'^  V.  MAHASKA  COUNTY,  p. ?19.  Iowa.  1889. 

Action  .to  recover  damages  for  death  of  plff's  intestate,  alleged  to 
have  been  caueed  by  deft's  negligence.   Judgnrent  for  deft.   .Appeal. 
It  appeared  th^t  Henry  Smith  and  his  family,  including  intestate,'  then  2 
years  old,  attetfiipted  to  drive  ever  a  bridge  of  deft's.   Tt  fell  through 
while  the  carriage  was  on  it  and  the  child  was  killed.   There  was  con- 
tributory negligence.   HFL';,  that  negligence  of  parent  is  not  imputable 
to  child.   The  cshild  was  free  frciri  fault,  and  the  oiere  fact  of  negli- 
gence on  the  par f- of  his  parents,  should  not  bar  an  action  brought  for 
benefit  of  his  estate.   Recovery  may  result  in  an  undeserved  benefit  to 
parents  as  they  inherit  child's  estate,- but  that  fact  cannot  'I'^fe^t  the 
action  brought  in  the  right  of  the  child. 

Action  on  statute  by  administrator,  but  proceeds  are  going  to  parent 
Conflict  of  authority  as  to  whether  parent's  negligence  should  be  a  bar 
when  he  is  sole  beneficiary.   It  -f/ouJd  not  bar  when  there  are  several 
beneficiaries  and  only  one  is  guilty  of  contributory  negligence.   At 
ccirircn  law,-  there  was  no  action  for  causing  death.   The  action  is  by 
statute.   The  question  is  what  the  legislature  nieant  by  the  statute. 
Had  it  meant  to  bar  a  sole  beneficiary,  it  would  probably  have  said  so. 
The  point  is  in  dispute.   "^iffany  on  "^eaf-  '^"  "Tongful  Act,"  sees.  69, 
n  ,   re.  '>'??.-^ , 

CHAPT^^'R  VI. 

'Whether  Negligence  of  maker  or  vendor  of  chattel  may  make  hiir.  lia- 
ble to  persons  other  than  those  contracting  with  hiir. 

AINT'^:PBOTTCM  v.  i\ RIGHT,  p.  S20,  10  Meeson  ^-  Welsby,  109,  1842. 

Declaration  stated  that  deft,  was  a  contractor  for  supply  of  mail 
coaches,'  and  in  that  capacity  contracted  with  Postmaster  General  tc  sup- 
ply one,  and  tc  keep  it  in  safe  and  secure  condition  during  the  contract; 
that  one  Atkinson  was  under  contract  with  Postn'aster  General  to  convey 
said  coach  over  its  route;  that  he  hired  plff.  as  driver.   Declaration 
then  alleged  thst  deft,  so  negligently  conducted  hin'self  that  the  coach 
became  unsafe,  thereby  an  accident  happened  and  plff.  was  injured. 
HE'LD,- that  plff.  not  being  privy  to  the  contract,' could  net  recover. 
Oeft.  had  to  deal  only  with  him  whom  he  contracted  with.   j'oward  hini  he 
owed  3  duty,  but  none  toward  plff.   It  is  dantiruir.  absque  injuria. 

Leading  case.   Plff.  conipiains  that  deft,  failed  to  keep  coac)j'  in 
repair.   Proper  construction  of  declaration  would  be  that  plff.  cb'unted 
simply  on  g  breach  of  contract;  there  was  no  allegation  of  general  duty 
of  deft.   Yet  deft,  knew  that  stage  coach  was  to  be  driven  by  a  coach 
driver,  one  of  the  class  to  which  olff.  belonged.   Decision  that  this 
declaration  is  not  good  is  probably  correct,  but  it  seeiris  as  if  declar-j- 
tion  could  be  formed  on  facts  which  would  be  good.   Tendency  of  court 
here  tc  hold  that  facts  which  constitute  a  contract  cannot  have  any  other 
effect  whatever,  which  is  probably  net  true;  it  can  be  the  starting  poini 


of  some  other  legal  duty.   3ass  important  lol-   los  dicta.   Pollock  cri 
Torts,  ?pd  Ed.  443,  447,  449.   H. Smith  on  Neg.-2nd  En^.  Kd.  p.  7. 
1  Hher.  ^- 'Red.  on  Ne«.H*'.   Ri?elow's  f.eadinp  '^ases  on  forts,  r-.  "I'l, 
515. 

3teGR  and  n?^:   v.  SKlVINGTOi^  p.  224,  Exchequer.  1S59. 

/Action  brought  by  Dlff's  wife  against  a  chemist.   Latter  sold  plti . 
a  coinpound  he  represented  as  a  hair  wash,  knowing  it  was  for  his  wife. 
Owing  to  negligence  of  chemist  she  was  injured,  ihe  ccxpound  not  being 
fit  for  a  hair'' wash.   H?LC,  that  she  could  recover.   The  action  is  not 
upon  the  contract,  but  for  breach  of  the  duty  which  deft,  owed,  not  only 
to  purchasers,  but  to  the  persons  he  knew  the  iriixture  was  intended  for, 
to  use  ordinary  care  in  coir.pounding  it.   Judgment  for  plff. 

This  is  practicably  the  wife's  suit.   3o  a  third  party,  not  a  party 
to  the  contract,  is  allowed  Lo  recover.   The  court  did  not  overrule 
' interbottofi.  v.  Aright,  but  limited  it  so  that  a  person  who  is  particu- 
larly naired  at  the  time  as  the  person  who  is  to  use  the  article  bought, 
could  recover  for  any  damage  done  in  its  use.   The  court  stopped  at  an 
illogical  point;  instead  of  stopping  at  the  point  at  which  they  did, 
thsy  ought  to  have  extended  the  liability  of  deft,  to  all  of  that  class 
who  might  reasonably  be  expected  to  use  the  article.   The  case  goes  not 
on  warranty  nor  fraud,  but  on  negligence.   The  gist  of  the  action  is  neg- 
ligence and  Diisrepresentaticn.   Deft,  whs  certain i-.,  ^uilty  of  -i   ndsrep- 
resentaticn  as  well  as  of  negligence. 

Prof.  ;3iiiith  thinks  the  dicta  in  'Unterbottom  v.  "'right  wrong,  and 
the  decision  in  the  principal  case  correct.   But  the  grounds  of  the 
decision  are  erroneous.   f'hs  court  should  have  allowed  anyone  to  recover 
who  might  reasonably  be  expected  to  use  the  article  not  merely  persons 
mentioned. 

Tti'Oltk'S   ANC     .  .   lN:;Hi!;iTii:ti,  p.  227,   New  York.  ISc?. 

/-ction  for  in.iuriss  sustained  by  Mrs.  Thomas  from  effects  of  bella- 
donna taken  by  her  by  mistake  as  extract  of  dandelion.   Through  negli- 
gence of  deft.,  a  manufacturer  of  mediqines,  belladonna  a  very  dangerous 
poison,  was  put  in  a  jar  labelled  dandelion  and  sold  to  druggist,  who 
sold  it  to  another,  who  sold  it  to  plff.   Plff's  wife  Look  some  of  it 
and  was  seriously  injured.   Deft,  contended  action  could  not  be  main- 
tained as  there  was  no  privity  between  him  and  plff.   HSLD,  that  natural 
consequences  of  deft's  negligence  was  death  or  great  bodily  harm  to  some 
person.   TL  was  a  breach  of  a  duty  he  owed,  not  merely  to  his  imm.ediate 
vendee,  but  to  the  final  purchaser  who  bought  the  article  for  use.   As 
his  negligence  was  imminently  dangerous  to  hwman  life,  his  liability  ex- 
tends beyond  those  with  whom  he  contracted. 

This  is  a  celebrated  case.   The  jury  founa  o^io  Koord,  the  drug- 
gisL'who  sold  from  the  jar  a  portion  of  its  contents  to  one  of  the  plffs, 
was  not  negligent.   The  Chief  Justice  put  the  decision  on  the  ground  of 
the  great  danger  of  the  article  to  human  life.   The  quality  of  the  drus 
in  this  respec^  ought  to  make  a  difference  in  deciding  whether  deft,  is 
negligent,  but  'hoL  in  deciding  the  class  of  persons  who  may  recover. 


10^. 
The  court  seemed  to  P,o  on  the  idea  that  the  dangerous  quality  of  the 
dru9,  increased  the  scope  of  the  liability,  but  there  is  no  lopacal  dif- 
i^erence  between  selling  n   to  retail  dealers  and  sendi  g  it  out  by  agents 
i'Aith  the  same  represerjtation.   -ee  Clerk  5-  Lindsell  on  Torts  365  to  368. 
The  courts  say  in  subsjtance  that  the  liability  of  deft,  extends  or  con- 
trtects  according  as  th'e  drug  is  more  or  less  dangerous  to  human  life. 
^'u»pose  the  iianufacturer  loaned  the  bottle  as  a  kindness  to  one  party  ana 
he  (loaned  it  to  another.   The  latter  could  not  sue  the  manufacturer,  he 
woiild  not  be  one  of  the  class  expected  to  use  it.   The  liability  in  the 
principal  case  would  be  the  same  if  the  niedicine  had  been  given  as  a 
gifl  by  the  manufacturer. 

Suppose  you  find  a  bottle  and  take  a  dose,  relying  on  label,  can 
you  sue  makers  for  in.jurv?   Probably  the  question  would  be,  was  it  rea- 
sonable to  rely  on  the  label  under  the  circumstances?   Probably  jury 
would  find  that  it  was  not. 

Sale  or  gift  to  A,  loan  to  b,  &  ought  to  oo  nsla  to  oe  one  of  the 
class  expected  to  take  it.  Loan  to  A,  by  hini  loaned  to  8,  latter  not' 
one  of  the  class. 

Whether  intervening  negligence  would  break  causal  connection  de- 
oends  probably  on, whether  deft,  ought  to  have  foreseen  it  as  probable. 
BLOOD  BALM  00.  v.  OOOP'^R..  331,  Ga.,  1889. 

Action  by  Oooper  against  Blood  Balm  Go.  for  an  injury  caused  by 
taking  some  of  their  patent  medicine  according  to  their  prescription. 
It  was  found  that  the  medicine  contained  a  poison  sufficienl  to  cause 
the  injury.   Deft,  claimed  a  non-suit,  fl)  because  the  drug  was  sold  to 
plff.  not  by  deft.,  but  by  a  druggist;  (2)  because  the  drug  was  not  immi- 
nently dangerous.   HSLC,  that  sals  by  intermediate  person  made  no  dif- 
ference as  long  as  medicine  was  made  by  deft,  and  taken  according  to  his 
directions.   Manufacturer  of  the  medicine  liable  to  all  who  take  it  ac- 
cording to  his  directions  and  are  injured.   The  directions  accompanying 
t.he  medicine  make  it  dangerous  and  proprietor's  wrong  lies  in  this, 
though  drug  of  itself  is  not  imminently  dangerous. 

"he  proprietors  intended  the  purchasers  to  rely  on  his  recommenda- 
tion.  The  case  differs  from  Thomas  v.  Winchester  in  that,  it  was  not  a 
deadly  poison,  but  the  medicine  contained  ingredients  which  were  likely 
to  do  harm  if  taken  in  the  quantity  prescribed  on  the  label.   The  plfi. 
was  not  an  original  vendee,  but  was  not  so  far  removed  from  deft,,  here 
as  in  Phomas  v.  .Vinchester.   The  case  goes  far  beyond  the  case  of  ,'A'in- 
tsrbcttcm  v.  Wright  or  Geo,  v.  ?kivington  or  even  Thomas  v.  'Unchester. 
In  fact  it  goes  the  farthest  of  any  Am.  case  but  Prof.  Smith  thinks  it 
goes  none  too  far. 

SOHUBFRT'  V.  J.R.CLARK  CO..  p.  254,  Vinn.  189-.      ^' 

Action  to  recover  for  personal  injuries.   Plff.  was  a  house  pain- 
ter in  employ  of  one  Phelps.   'Iter  ordered  a  step  ladder  of  a  merchant 
who  procured  deft,  a  manufacturfer  of  such  articles,  to  deliver  one  to 
plff.   It  was  made  of  very  poor  wood  and  was  dangerous  to  use.   Al- 
lgg^,-  tv,.,^  deft,  knew,  or  ought  to  have  knov/n  of  these  defects,  but  the 


J  uc . 
oiners  dia  not,  and  couicl  ncL  have  discovered  them   Kadder 
Ladder  broke  and  piif.  was  injured.   dLLD,  that,  ihough  there  was  no  con- 
tract relation  between  the  parties,  c^ft's  neglect  to  disclose  the  de- 
lects in  the  ladder  was  a  wrong  to  pUT.   Fact  that  it  passed  throusjh 
interinediate  hands  ir.akes  n,  aiiTerei^ce,  so  lon£;  as  defect  was  known  only 
to  maker.   Latter,  in  putting;  the  gladder  up  for  sale,  was  -guilty  of 
neglect  toward  the  customer  who  should  purchase  it,  and  lor-  injuries 
caused  by  that  negligence  he  is  liable. 

1'nis  case  is  like  Geo.  v.  Sl^ivinton,  in  that  deit,  knew  that  plIT. 
■as  to  use  the  ladder,  for  delt.'was  tola  to  deliver  it  lo  plif.   But 
Lhe  reasoning  of  the  court  goes  far  beyond  the  case  of  George  v.  Skiving- 
Lcn.   Deft;,  knew  that  the  ladder  was  defective  when  he  put  it  in  stock, 
although  he  could  not  distinguish  it  afterwards.   It  was  negligence  to 
put  such  a  ladder  in  stock.   This  case  would  be  decided  i^^^-  •-••^" -^  '"-^y 
had  the  ladder  passed  throuiih  several  hands. 

CURTIN  v.  SCft«-    .  p.  239,  Penn..  1891. 

Ceft.  entered  into  a  contract  with  a  Hotel  Co.,  for  erection  of  a 
hotel.   The  building  was  coiiipleted  and  accepted  by  the  Co.,  and  at  an 
entertainaient  given  by  t.he  proprietor  later,  a  crowd  being  on  the  porch, 
it  broke  through,  fron;  defective  construction,  and  plff.  was  injured. 
It  appeared  that  the  porch  was  not  built  according  to  contract,  but  the 
defects  were  not  apparent,,  nor  viere  they  known  to  the  Co.   Deft,  re- 
quested court  to  charge  that  accident,  happening  after  acceptance  by  the 
Co.,  he  was  not,  liable.   Court  refused.   Verdict  for  plff.   HELD, 
that  deft.,  owed  a  duty  to  his  eiiployer  only,  none  to  the  public.   Dif- 
ferent fro.T;  case  of  putting  a  deadly  poison  in  circulation.   Judgment 
reffepsedd. 

lends  strongly  to  sustain  iinglish  decisions.   This  case  follows 
.' inter bottoii  v.  "risht.   •Unterbotton'  v.  i(>right  is  also  followed  in 
51  N.Y.  494. 

See  full  report  as  to  evidence  of  negligence,  which  however, ■  was  net 
considered  by  court,  above.   Court  held  that  deft,  owed  duty  si.T.ply  to 
man  with  who.Ti  he  contracted.   Ccurt  presunied  that  defects  were  not  easi- 
ly observable.   j's  to  renark  on  top  of  p.  242,  deft,  did  not  owe  duty 
to  the  whole  world,  but  such  duty  would  be  only  to  such  class  of  person:-. 
as  would  probably  use  the  hotel.   The  claiin  is  that  the  deft,  should  use 
due  care  and  is  not,  as  court  seeuis  to  think,  that  deft,  should  be  an  in- 
surer.  Dangerous  things  ir^ay  be  lawfully  made,  kept,  and  sometimes  scld, 
if  they  are  kept  or  sold  with  full  notice  or  warning.   12  N.Y.  351. 
'.sight  of  authority  is  very  strong  that  citizen  cannct  sue  water  compcny 
for  failing  to  furnish  water  with  which  to  put  out  a  fire,  in  case  of 
contract  between  city  and  company,  22  S.'.'s.Rep.  277;  4S.Pa.c.  R.  59;  con- 
ora,  12  S.'/s.Rep,  554,  557.   But  if  Co.  undertake  to  perform  contract 
and  in  so  doing  they  furnish  son'ething  which  is  used  by  the  proper  claso, 
and  which  is  harmful,  as  in  the  case  of  furnishing  impure  water,  they, 
are  liable.   In  45  Pac.  Rep.^  393,  court  held  that  where  vendor  knew  of 
defeat,  one  who  has  contract  relations  with  vendee,  but  not  as  vendor, 
can  recover,  29  Atl.  Rep.  301  (U.d.);   the  vendor  sold  a  horse  fraudently 


106. 
representing  him  to  be  sound,  in  fact  the  horse  had'  glanders,  which  was 
coirir.unicated  to  the  vendee's  hostler;  the  hostler  brought  suit  against 
the  vendor.   The  hcourt  held  t)iat  he  could  recover  il  his  catching  the 
disease  was  a  probable  consequ^^nce  of  the  vendor's  acts. 

In  7?   Me.  52S  a  horsedelaer  falsely  rep/'esented  an  aniniai  -^   oafe^ 
family  horse.   The  horse  wasS  in  fact  dangerous  and  ran  away  with  the 
purchaser.   The  wife  brougr/t  suit  for  injury.   HJLD,  she  could  not  re- 
cover.  There  were  no  falsfe  representations  to  her.   The  cage  differs 
from  'Unterbottoni  v.  Wrighi  where  it  was  a  case  of  iTere  negligence, 
Bhereas  this  was  a  case  of'  wilful  deceit.   This  case  shows  , (he  tendency 
of  courts  to  limit  liability  to  the  immediate  parties  to  the  contract. 
HKAVKN  V.  P5ND0R,-  p.  242,  Queen's  Bench.  185?. 

/■ction  to  recover  damages  for  injuries  caused  by  negligence  of  aeft- 
Flff.  was  a  workman  in  the  employ  of  Gray,  a  ship  painter;   Gray  con- 
tracted with  the  owner  to  paint  a  ship  in  deftjs  dock.  peii.   under  con- 
tract with  ship  owner,  supplied  a  staging  to  be  hung  on  t^he  outside  of 
the  ship  for  purpose  of  painting  her.   The  ropes  were  defective  and  un- 
fit for  use,  deft,  did  not  employ  due  care  in  providing  them  they  broke 
and  plf .  was  injurec  .    adgnient  for  deft,  in  G.B.  Appec^l.   HKLD,  that 
plff .  could  recover,  as  de£t,  must  be  considered  as  haviing  invited  him 
to  use  the  dock  and  appliances,  and  hence  was  under  obligation  to  use 
due  care  to  see  that  the  appliances  were  fit  to  be  used;.   Brett, M.R.  put 
his  judgment  on  the  booad  ground  that  whenever  a  person  is  placed  in  sue; 
a  position  with  regard  to  another  that  every  one  of  crdlinary  sense  who 
did  think  would  at  once  recognize  that  if  he  did  not  use  ordinary  care  he 
would  cause  danger  of  injury  to  the  person  or  property  of  the  other,  a 
duty  arises  to  use  ordinary  care  to  avoid  the  danger.   Such  a  position 
deft,  here  was  placed  in  with  regard  to  the  class  of  persons  who  might  b. 
expected  to  use  the  staging  before  a  reasonable  opportunity  for  discover- 
ing the  defect. 

As  decided  by  majority  of  the  court  this  case  related  to  invited 
persons.   Invited  persons  means  persons  present,  by  the  consent,  of  the 
dock  owners,  on  business  of  con^non  interest  to  himself  and  the  dock  ow- 
ner.  Brett  uses  the  word  injury  on  page  244  in  the  sense  of  substan- 
tial damage.   Brett's  dictum  must  be  limited  so  as  not  to  include  cases 
of  the  ordinary  and  natural  use  of  land.   i  man  in  the  use  of  his  own 
land  may  frequently  do  acts  which  cause  substantial  damage  to  his  neigh- 
bor and  the  neighbor  may  do  the  same  in  turn  with  him,,  but  the  law  will 
not  give  any  action.   Clerk  &  Lindsell  on  Ports  on  p.  331,  note  A.   The 
maxim  damnum  absque  injuria,  damage  without  invasion  of  plff's  rights, 
was  forgottgn  by  Brett.   Seven  on  p.  83  critizes  Brett,  as  begging  the 
question,  for  the  word  injury  correctly  used  assuir.es  a  legal  4uty.   If 
Brett  meant  damage,  it  should  be  remembered  that  damage  is  frequent,  with- 
out a  legal  wrong.   100  iJ.S.  195;  L.R.  1893  caused  a  great,  deal  of  talk. 

In  L.R.  24  Q.B.D.  656,  thistles  on  a  man's  land  were  carried  by  the 
wind  on  to  his  neighbor's  land,  the  court  held  hs  could  not  recover.   If 
Brett's  statement;  of  the  law,  bottom  of  i  .    ,  were  taken  broadly  h^. 
could  recover.   Brett's  statement  must  be  limited  as  before  said  to  or- 


107. 
dinary  and  nalurai  use  oi'  land. 

In  100  U.S.  195  an  attorney  looks  up  title  for  client,  thinks  he 
linds  a  clear  title,  gives  clierft  certiticats  to  that  sITect,  latter  bor- 
rows money  on  strength  of  it,  tfitle  is  in  fact  not  good.   Later  onl  the 
lender  brings  an  action  for  nd'Slii^ence.   HELD,  he  can't  recover. 

Smith  thinks  that^; Blood  .balm  Co.  v.  Cooper  is  right  and  the  dicta 
m  .'intsrbotton.  v.  nr^ht  is' wrong,  but  the  weight  of  authority  is  agains 
nin;.  i  »■ 

According  l^o  Pros.  Srrdth  plff.  n-ust  prove  the  follcwins  six  propo- 
sitions in  order  to  retpover. 

*  f 

(1).   fhe  deft,  se^t  article  out  wiLh  a  negligent  fnisrspresentation 
as  to  its  fitness. 

(2).   The  plff.  used  the  article,,  relying  on  this  misrepresenta- 
tion, and  suffered  damage, 

(3).   Phat  plff.  acted  reasonably  in  so  relying. 

(4).   Probably  already  included  under  2   and  3.   Thai  piif,  used 
the  article  in  a  manner  and  for  a  purpose  intended  by  deft . ,  or  which 
aeft.  ought  to  have  contemplated  as  probable. 

(:'),   That  plfi.,  even  though  not  specifically  in  deft.'s  niind  when 
he  sold  the  article?,  was  one  of  the  class  of  persons  by  whom  deft,  in- 
tended the  article  to  be  used,  or  one  of  the  class  of  persons  ivhoin  deft, 
ought  Lo  hase  contemplated  as  likely  to  ush  it. 

(5).   That  there  was  no  intervening  negligence  of  third  persons  (or 
contributory  negligence  of  plff.)  breaking  the  causal  connection  between 
dett's  negligence  and  plff'*s  damage. 

m    A'here  defence  is  set  up  that  plff.  put  confidence  in  suuTVsnaee, 
and  not  in  original  vendor,  that  defence  is  not  good  -  it  is  not  neces- 
sary that  plff.  should  put  confidence  in  that,  particular  vendor,  but 
puts  his  confidence  in  class  of  n^akers  who  sell  that  aritcle. 

he  argument  in  favor  of  T'^'nglish  authorities  is  that  otherwise  deft, 
may  be  brought  into  relations  with  persons  with  whom  he  would  not  de- 
sire to  come  into  ccntBct  as  v.here  original  vendee  sells  article  to 
some  eneniy  of  original  vendor.   If  there  have  been  many  changes  in  ow- 
nership plff.  would  find  ii  difficult  to  convince  jury  that  some  inter- 
vening cause  had  not  come  in.   As  Lc  multiplicity  of  actions,  see  Innes 
on  Torts,  p.  107,  lOS,  note. 

The  weight  of  authority  j.-.  .-oi.ongly  against  the  fifth  proposition 
gbcve,  but  sefc  Clerk  5:  Linasell,  3SS. 

Compare  above  propositions  vvith  the  following  extract  from  the  opin- 
ion of  Brett,  Y.R.,  in  Heaven  v.  Fender,  L.R.  11,  Q.B.Div.  p.  509. 
"'A'henever  one  person  is  by  circumstances  placed  in  such  position  with 
regard  to  another  that  every  one  of  ordinary  sense  who  did  think  would 
at  once  recognize  that,  if  he  did  not  use  ordinary  care  and  skill  in  his 
own  conduct  with  regard  to  those  circumstances,  he  would  cause  danger 
of  injury  to  the  person  or  property  of  the  other,  a  duty  arises  to  use 
ordinary  care  and  skill  to  avoid  such  danger." 


108. 
:>HAPTKH  VII. 
DUTY  OF  OARii,  ON  TtiS  PART  OF  OGGUPIUlft  OF  LAND  OR  BUILDINGS. 

SfcCTION  1.- 

Guty  of  care  toward  persons  using  adjacent  public  way. 

-■■-:'■  V.  AnLs  p.  250,/ S  CjOR'iT'.on  Bsnch  (Mannin^^,  Granger  & 
icott)  '69Z,-  ISoO. 

Action  on  the  case  under  t;(ii;tULc!  icr  compensBtink  isii'iiias  oi  per- 
sons killed  by  accident.   Declaration  alleged  that  on  dei't's  preirases, 
^buttint  on  the  highway,  v.as  a/lar.se  hole,  which  was  insufficiently 
Juarded  and  so  dangerous  to  passers-by,  by  reason  of  which  insufficient 
ouarding,  deceased  slipped  and  fell  in.   Plea,  that  deft,  owed  no  duty 
to  fence  in  the  hole.   It  appeared  that  deceased,  walking,  alons  the 
highway  in  the  evening,  fell  into  open  area  cf  an  unfinished  house  of 
deft's.   Judge  charged  that  if  there  was  a  public  way  so  near  the  area 
that  it  v/ould  be  dangerous  to  the  public  unless  fenced,'  then  deft,  would 
be  liable  if  deceased  was  using  due  care.   Verdict  for  plff.   Rule  nisi 
H^.LQ,'  that  this  charge  was  correct.   Deft,  was  guilty  of  a  public  nui- 
sance, even  though  the  highway  itself  was  not  interfered  with,  for  the 
danger  would  prevent  full  eriovirent  bv  ths  cublic.   Lsclaraticn  disclos- 
es a  good  cause  of  action. 

i  he  fault  of  deft,  was  not  in  fraking  the  excavation,  but  in  leaving 
it  unprotected.   It  was  close  to  his  line  and  adjoining  a  highway. 
Had  it  iiierely  joined  a  neighbor's  land,  and  had  there  been  no  fence, 
neighbor  could  probably  not  recover.   Deft,  could  rightfully  dig  the 
hole  in  his  land,  but  it  was  dug  in  a  place  where  it  was  likely  that  some 
one  would  fail  in,  and  it  was  left  unguarded.   It  was  inconsistnt  with 
the  public  right  to  use  the  highway.   4  H.  &  N.   67  was  a   case  of  an 
excavation  about  5  yards  from  the  line  of  deft's  land.   Plff.  could 
not  recover,  the  court  holding  that  the  excavation  fi;ust  be  so  near  as  to 
cause  an  appreciable  danger  that  persons  passing  along  the  highway  and 
using  ordinary  care  might  stray  into  it.   .^0  Oonn.  535  held  that  the 
test  is  not  the  nuir.ber  of  feet,  distant,  but  it  is  a  question  for  the  jury 
whether  the  excavation  is  so  near  tjie  highway  that  it  substantially  en- 
dangers travellers  who  are  using  reasonable  care.   Prof.  r.'n!ith  thinks 
that  this  is  the  correct  test. 

In  Mass,  the  injured  party  aiust  seek  his  ren'edy  against  the  tc-vn, 
tnis  is  by  statute,  so  there  is  no  recovery  against  the  individual. 
10  ;^3tcalf  371;  1/^9  )^ass.  450. 

'I. 
uty  of  Care  towards  Trespasser. 
LAHY  V.  CL'^JVH'LftND,  5-c.  H.R.Co..  p.' 254,- Indiana.  1S81. 
ACTION  FOR  DAJ/A3E  ALLRJGfcD  TO  HAVF:  ^'"^  '^"-''^   THROUGH  NtiiSLIGFiNT    / 
failure  of  defts.  to  repair  a  building  ^l   h.:;  -Lounds.   The  building  ,' 
in  question  stood  on  deft's  land  near  the  highway  in  a  state  of  disre'-^ 
pair.   Plff.  sought  shelter  there  from  a  rain  storm,  and  was  injured 
fron.  a  piece  of  the  roof  falling  in  on  hiir.   HELD,  that  as  plff.  was  a 
trespasser  he  took  the  risk  upon  hin:self  of  ail  the  mere  on-issicns  of 


109. 
deti's.  as  to  the  conaition  of  grounds  and  buildings.  CefLs.,  not  hav- 
ing invited  hin:  there,  owed  him  no  duty  to  keep  the  building  in  repair. 

Plfl".  was  a  trespasser  and  deft,  owed  him  no  auty  to  keep  the  prem- 
ises/in  a  safe  condition  for  him, 

See  Bishop's  Non-Con.  Law,'  sec.  105  as  to  shooting  a  trespasser  - 
ri^lit  conflicts  with  right;  higher  right  of  trespasser  to  life  prevails. 
'.lo^iiVt   here  seeirs  to  take  it  fcl:'  granted  that  plff.  had  not  reached  high- 
way,  to  hold  against  the  decision  in  this  case  would  amount  to  this  - 
it)  would  be  a  duty  of  deft,  to  keep  his  property  in  repair  for  the  sake 
0^  trespassers.   Distinguish  carefully  between  harm  wnich  happens  to  a 
trespasser  from  the  nature  of  the  property  on  *hich  he  trespasses  and 
LhaL  v;hich  happens  from  some  act  of  the  owner  as  distinguished  from  the 
condition  of  his  property.   -here  deft,  knew  that  his'  property  was  in 
ruinous  condition  and  did  not  warn  trespasser  from  going  upon  it,  courts 
hold  that  there  is  no  duty  of  warning  due  trespasser,  even  though  the 
danger  is  not  open  to  the  eye,  and  deft,  sees  the  trespasser.   Olerk  & 
Lindse-11,  373,  Iv. 

The  rule  is  plfi.  Oiui;ui  ri^cv^r  .ui  ;.ii>  i^ult  of  iLt.   t^iemises  at 
ohe  time  of  the  entry.   But  if  deft,  intentionally  put  the  premises  into 
a  condition  to  in,1ure  trespassers,  plff.  could  probably  recover.   That 
is  not  a  justifiable  method  of  deterring  trespassers. 

Probably  the  land  cv/ner  is  under  a  duty  not  to  ch*ir.ge  things  after 
the  trespasser  is  on  his  land  so  as  to  make  it  more  dangerous. 
LOUISVILI.P;  &  N.R.CO.  v.  HURTv  p.  257,   Ky.,  1P90. 

Action  against  R.R.Co.  for  in.iury  alleged  to  have  been  caused  by 
company's  neglect  in  running  its  train.   Plff.,  a  boy  of  11,  climbed  on 
a  freight  car.   An  engine,  with  cars  attached,  ran  against  ii  so  hard 
that  plff.  fell  off  and  the  wheels  ran  over  his  leg.   H!iLD,  that  if  plfi 
went  on  the  car  without  knowledge  or  consent  of  deft,  or  any  of  the  em- 
ployes and  was  injured,  he  cannot  recover  unless  employes  knew  of  '"^"? 
perilous  position  and  failed  to  use  due  care  to  prevent  the  injury. 

Deft,  did  not  knew  and  was  not  to  bJame  for  not  knowing  that  the 
boy  was  there.   In  27  S. ft. Rep.  992,'  Ky.  1394,  passenger  cars  /leve   left 
near  the  station  and  a  boy  was  hurt  in  some  way.   The  same  court  held 
that  defts.  ewere  liable  as  under  the  circumstances,  there  was  more 
probability  of  trespassers  being  there. 

If  jeft.  kncA's  thai  trespasser  is  on  land  he  is  under  some  obliga-  ( 
ticn  towards  trespasser,  but  Question  is,  how  much?   ^s  to  this  question 
there  are  three  views.  I.      Owner  is  not  liable  for  anything  short  of 
intentional  harm.  2.     Owner  is  liable  for  reckless  or  wanton  conduct 
or  gross  negligence.   ;^.  '^v-t-i-  liable  for  f-Tilure  to  'i-^e  or-iin' rv/  '^>.r- 
tcawards  trespasser.  ^ 

AHpl'fi:  v.TWrPCHR'LL,  p.  ?59,  Vermont,' 1S53. 

Action  on  the  case  to  recover  dainages  y^hich  plff.  sustained  by  fall- 
ing of  a  staging  erected  for  his  own  use.  caused  by  deft,  having  remioved 
one  of  the  staging  poles.   It  appeared  that  the  pole  belcngelr  to  deft., 
plff,  having  taken  it  for  use  in  the  staging  without  permission;  that 


110. 
deft,  removed  il  in  piff's  absence  and  without  his  knowledfis;  that  the 
accident  resulted  as  a  consequence.   Guestion  was  whether  deft,  should 
have  used  due  dili£;ence  to  elve  plff.  notice.   H!<'LD,- that  no  such  duty 
was  imposed  on  him.  His  ri^hi   to  i-e^ove   the  pole  was  absolute.   Plff. 
was  unlajwfully  in  possession  and  had  no  right  to  use  of  pole.   It  was 
his  own  misfortune  if  he  failed,  to  see  that  the  staging  was  unsafe. 

This  was  a  case  of  recaption  of  a  chattel  from  aocther's  land.   The 
court'  said  there  was  no  duty  on  the  part  of  deft,  to  warn  plff.  of  the 
removal  of  the  support,.   The  case  is  irreconcilable  with  Phillips  v. 
■iipsrs.   Deft's  act  was  an  affirmative  8nd  not  a  negative  one  and  Phil- 
lips v.  '.'ilpers  is  probably  better  law  for  sffirn'ative  sct.s  than  the 
princioal  case.   But  the  point  would  probably  be  decided  differently  in 
differeni  jurisdictions. 

If  &  trespasser  takes  a  dangerous  horse  and  the  owner  sees  him  and 
fails  to  gise  warning,  the  oivner  is  net  liable.   If  the  owner  knew  that 
a  peculiar  whistle  would  make  the  horse  rear  up  and  whistled,  and  the 
trespasser  was  injured,-  the  owner-  would  be  liable.   '"hich  of  these  two 
cases  is  White  v.  ■'witchell  niost  like? 

PHILLIP:  v.  ;,1LPF'B3,' p.  262,- New  York,  1^-. 

(ict.ion  on  the  case  to  recover  damages. 

Plff.,'  3  painter,  fastened  one  of  the  ropes  of  his  scaffold  to  the 
chimney  of  deft's  house,-  adjoining  the  one  he  was  painting.   Plff.  in 
this  action  offered  evidence  to  show  that  deft,  untied  the  rope.   Con- 
tended for  deft,  that  he  had  a  right  to  do  so  as  the  rope  was  t-ied  tc 
the  chimney  without  his  perrrdssion.   Non-suit.   Appeal.   HELD,  t.hat 
that  right  ir:ust  be  exercised  in  such  a  nsanner  as  not  tc  betray  a  reckless 
disregard  of  the  safety  of  others.   Heft,  was  bound  to  exercise  reasona- 
ble prudence,  and  tc  do  the  work  in  such  a  way  as  to  give  notice  to  those 
who  could  be  affected.   Other"' '^-^^  -•'':  '^^-^t  ,  ■'■■=- i^'--'  :Ti'--^t  b^-  lawful  would 
become  unlawful. 

The  deft,  here  loosened  the  rope  in  such  ?.   way  that  it  amounted  to 
setting  a  trap  for  trespasser.   He  ought  to  have  loosened  it  in  such  a 
way  as  tc  make  clear  tc  the  trespasser  what  was  done  or  notify  hini  of 
its  being  loosened.   This  is  a  case  where  a  wrongdoer,  by  his  wrong,  im- 
posed a  greater  duty  upon  another  than  would  otherwise  rest  upon  him. 
Prof,  ^aiith  agrees  viith  this  case  rather  than  the  preceding  one. 
MAYNARC  V.  BOSTON  i  MAIN?  R.R.,  p.  263,  ;^ass.,  1S74. 

i'ort  for  killing  of  a  horse  by  loconotive.   i^diidtted  that,  the  horse 
..^..  trespassing  on  the  track.   Judge  charged  that  deft,  was  liable  if 
by  due  care  the  injury  could  have  been  avoided.   HRIiD,  t.hat/this  was 
wrong,  it  being  a  statenient  of  duty  toward  a  horse  rightfully  on  the 
track.   But  as  the  horse  was  a  trespasser,  deft,  was  not  liable  for 
anything  short  of  reckless  and  wanton  misccnduct. 

It  is  tc  bs  presumed  that  deft,  saw  horse;  court  held  him  liable  on- 
ly if  he  was  reckless  or  want,on  after  he  saw  horse. 

FM::,-s  v.  nORTH'^RN  pac.  R.P.Co.,  p.  265,  Minn..  1SS7. 

Action  for  running  upon  and  killing  piff's  horse.   '^he  horse  was 


waSv 


ill 
slrayine  wront^fuiiy  in  the  hieh'/zay,  and  ran  upon  the  track  at  i   crossing, 
in  front  of  the  train.   Deft,  requested  oourt  to  charge  that  plff.  can- 
not recover  unless  it  appear  that  deft's  servants  were  negligencfe  after 
discovering  the  peril  of  the  horse.   '^ourt  rei^used.   Appeal.   Hfi^LD, 
that  the  charge  should  have  been  Riven.   Horse  being  wrongfully  in  the 
highway,  deft's  srv.^iservants  were  net  bound  t^  look  out  for  it  before 
they  saw  it.   '/ihen  they  perceived  the  aninial/'s  danger,  a  duty  arose  to- 
X'.vard  plff.,  and  not  until  then.   Tf  they  failed  in  that  duty  of  car§, 
they  are  liable,  otherwise  not. 

The  horse  was  trespassing  on  the  highway,   The  court,  neld  that,  deft 
not  bound  to  anticipate  that  trespassing  animals  ?/culd  be  there,  and 
therefore  would  be  under  no  duty  to  look  out  for  such  animals,  but  deft's 
duty  was  merely  not  to  injure  the  horse  after  seeing  it,  if  it  could  avci 
doing  so.   i he  court,  says  there  is  a  duty  tc  look  ahead  but  this  is  due 
to  anirrials  rightfully  on  the  track. 

Strong,.),  in  Brown  v.  HuMell ,  ..     36,  Penn.,  1S63. 

Intruders  upon  railroad  tracks  are  rvrongdoers.   R.R.  is  not  obliged 
tc  take  precautions  aganst  possible  injury  to  intruders.   Cuty  of  care 
toward  a  person  not  ciowing  where  it  is  rendered  necessary  only  by  his 
own  wrongful  act..   No  iratter  how  great  may  be  the  danger  of  trespassing, 
the  standard  of  duty  in  Lhe  use  of  one's  property  is  not  elevated  or  de- 
pressed by  a  varying  risk  of  unlawful  intrusions  upon  his  rights. 

Case  goes  to  an  extreme.   ''xtrerre  application  of  iiaxirii  that  law 
presuiTies  that  every  man  will  do  his  duty.   It  lays  down  the  rule  that  t 
railroad  is  never  pound  tc  look  cut  for  trespassers. 

SOUf'H  &  ^     La.  R.R.OQ.  v.  DONOVAN,  p.  2S8,  Ala.,  1887. 

3on!eville,J.   Plea  bad  for  failing  tc  aver  that  deft.'s  servants  in 
charge  of  train  used  proper  diligence  in  keeping  a  look-out  for  obstruc- 

oicns  on  trie  track,  including  plff's  son  who  was  injured.    The  train  v/a 
was  going  through  a  large  city  at  a  rate  prohibited  by  city  ordinance. 
Under  these  circunstances  it  was  the  duty  of  persons  in  charge  to  keep  a 
vigilant  outlook  even  for  trespassers,  end  failure  to  do  so  was  negli- 
gence. 

CAHRING^ON  v.  LCIJI^VILL^.  ;.  ^.r......  p.  ?c^,  fia.,  1S89. 

nOBierville,'-];   No  duty  on  engineer,  in  the  absence  of  special  rea- 
sons, to  keep  a  vigilant  look-out  for  trespassers. 

Note  to  the  last  two  cases.   Scirerville.J.  iriakes  a  distinction 
between  populous  and  non-populous  territory.   He  has  in  niind  "Cae 
"Oare  under  the  Circumstances."   Query,-  as  to  whether  he  should  not  have 
left  the  question  of  care  tc  the  jury.   -ee  next  case. 
CTMOINNA^'T  ^c.  R.R. Co.,  v.  ^'J/ITH.  Ohio,  1871. 

.Action  figainst  railroad  to  recover  daiiages  for  killing  of  horses 
through  alleged  negligence  of  deft's  servants.   The  horses  had  escaped 
from  deft's  enclosure  upon  the  track.   Judge  charged,  that,  the  para- 
iiiount  duty  of  those  in  charge  of  train  was  the  protection  of  property 
snd  passengers  on  beard.   But  t^^-^^-   are  bound  also  to  use  ordinary  care 


112. 

Lo  look  ouL  iO[-  tresuiii^aisrs  on  the  track.   Question  is,   considerinsi 
their  paramount  duty  towards  passengers  and  bagi^age,  would  ordinary 
prudent  aien,  in  charge  of  the  train,  in  the  exercise  of  ordinary  care, 
have  avoided  the  accident. 

Ooinpare  Maynard's  case,  ante  263.   Higher  court  n:eans  to  say  that, 
the  duty  where  engineer  sees  trespassing  animal  on  track  is  to  use  or- 
dinary care  under  the  circumstances.   Better  than  Mass.  case. 

Putting  train  behind  schedule  time  by  stopping  for  every  slight  ob- 
struction would  endanger  lives  of  passengers  by  deranging  time  table. 

3ourt  does  not  lay  down  proposition  like  Fa.  case  that  engineer  is 
not  bound  to  look  ahead,  but  holds  that  he  may  be  held  liable  for  not 
looking  ahead  even  when  track  is  fenced.   Question  of  care  under  the 
circumstances.   Case  is  contra  to  Palmer's  case,  ante  ?65. 

No  duty  to  ensure  safety  of  trespasser  when  his  presence  is  known 
but  ownei"  of  land  is  liable  for  injuries  inflicted  by  lack  of  ordinary 
care,   Ne  can  eject  trespasser  using  reasonable  force. 

'.'.here  land  owner  harms  trespasser  in  a  way  that  would  be  negligent 
if  he  knew  trespasser  were  ther?,  liability  is  question  of  cir  cumstance 
as,  difference  between  obligation  of  engineer  of  R.R.  and  driver  of  wa- 
gon along  public  highway.  Engineer  may  have  paramount  duty  to  his  pas- 
sengers. In  great  majority  of  cases  land  owner  is  not  obliged  to  look 
out  for  trespassers,  but  there  may  be  cases  where  trespassing  is  so  con 
mon  that  he  may  be  under  duty.  Conflict  of  authority.  Seems  to  be 
question  for  jury  whether  under  the  circumstances  land  owner  should  net, 
have  looked  for  tetrespassers. 

^*hy  is  not  a  trespass  contributory  negligence?   Because  a 
trespasser  is  not  necessarily  careless.   1  Sherman  ^  Redfield  on  Negli- 
gence nh  M.,   sec.  97-8. 

FROST- v.  '^lASTFRN  R.R..  p.  272,  N.H.,  1S96. 

Case  for  personal  injuries  caused  by  alleged  negligence  of  defts.  in 
not  oroperly  guarding  and  securing  a  turn  table.   Plff.  was  seven  years 
old,  went  on  deft's  land  to  the  turn  table  which  had  been  set  in  motion 
by  older  boys,  and  was  injured.   It  was  claimed  that  defts.  were  negli- 
gent in  the  construction  and  condition  of  the  turn  table.   HELD,  that 
they  owed  no  duty  to  plff.  to  keep  the  turn  table  in  good  condition.  h 
a  trespasser  he  took  upon  himself  the  risk  of  danger  from  the  condition 
of  the  premises.   'To  recover,  he  would  have  to  show  that  the   injury  was 
wantonly  inflicted  or  that  owner,  being  present,  might  have  prevented  the 
injury  by  use  of  due  care  after  discovering  the  danger. 

No  doubt  thatadult  person  cannot  recover.   So  many  cases  have  oc- 
curred throughout  that  it  is  clear  that  such  turn  table  is  an  attraction 
to  small  children.   Court  held  that  deft,  had  something  on  its  own  land, 
at  a  considerable  distance  from  highway,  and  used  that  something  in  the 
ordinary  way. 

in  some  states  a  child  cannot  recover,  in  more  the  child  can  recov- 
er.  1.6'!  Mass. ■  349  and  145  N.Y.  30  are  in  accord  with  the  principal 
case. 


113. 

KRAKf.^v.  MILWAUKEE  &  ST.  PAUL  RY.  00. ,  p.  ?7.  Vinn.,  1875. 

Action  brou£;ht  by  a  child  of  seven  to  recover  for  injuries  received 
.•■hile  pla^^int^  upon  a  turn  table  of  deft.   Complaint  stated  that  turn 
table  was  Situated  in  a  public  place,  unguarded  and  in  no  way  protected 
so  that  children  could  not  turn  it  around;  that  the  same  was  very  at- 
tractive to  Children,  as  deft,  knew;  that  in  conseQuence  of  deft's  neg- 
ligence in  not  fastening  it,  plff.  was  injured,  the  turn  table  being  set 
in  motion  by  other  children.   Judgment  for  deft.   Appeal.   HELD,  that 
Dlff .  occupied  a  different  position  from  that  of  a  mere  voluntary  tres- 
passer.  Plff.  was  induced  to  enter  the  premises  by  the  temptation  of 
an  attractive  plaything,  and  to  a  child  of  tender  years  that  is  the  same 
as  an  express  invitation  to  an  adult.   Deft,  knowing  all  the  facts,'  hav- 
ing allured  children  into  danger,  was  bound  to  use  care  to  protect  then; 
from  it. 

Here  the  turn  table  was  in  an  open  place  belonging  to  the  R.R.  Co. 
The  court  held  fs^e  p.  277)  contra  to  the  preceding  case.   The  great 
weight  of  authority  is  with  this  case,  but  there  is  a  conflict  of  author- 
ity on  the  point.   The  probability  of  seriousness  of  harm  is  infinitely 
less  than  with  an  apple  tree  with  rotten  branches,  which  is  alluring  to 
children,  than  in  the  case  of  a  turn  table,  so  deft,  would  not  be  held. 

In  39  N.E.Hep.  484,  a  land  owner  was  held  liable  in  a  case  where  a 
child  was  drowned  in  an  unguarded  excavation  filled  with  water  and  float- 
ing plank.   100  Penn.  State  144  contra.   159  l^ass.  233  follows  Frost 
v.  The  Railroad. 

In  21  S.K.Rep.  1062  a  case  of  a  ladder  against  a  car,  the  company  wa 
was  held  not  liable. 

In  28  S.>**.Hep.  1089,.  a  child  jumped  on  a  movingtrain  and  the  rail- 
road was  held  not  liable. 

In  32  Minn.  133  and  23  Kansas  147  a  car  was  standing  on  an  incline 
and  the  brakes  were  set.  A  child  loosened  the  brakes,  the  car  started 
and  8  boy  was  injured.   Held,  R.R.  was  not  liable. 

In  27  Pac.  Rep.  389,  a  heavy  hand  car  was  beside  the  track;  boys 
put  it  on  the  track  and  one  got  hurt.   HU'LD,  R.R.  net  liable. 

In  91  Cala.  295  where  there  was  an  older  boy  present  who  knew  bet- 
ter, the  principle  of  Lane  v,  Atlantic  Works,  p.  80  of  these  cases,  was 
applied. 

In  59  M.W.R.  37  a  trespassing  child  was  injured  by  a  land  owner 
chopping  wood.   HELD,  wood  chopper  net  liable  for  net  warning  child  who 
is  injured  without  negligence  of  chopper. 

In  39  Minn.  144  and  45  Minn.  233  turn  table  cases,  the  h.h.  was  heid 
only  bound  to  use  ordinary  care.   The  court  held  that  the  R.R.  was  not 
bound  to  secure  the  turn  table  so  that  it  could  not  be  unfastened.   It 
added  this  instruction  to  the  instruction  given  in  the  Keffe  case.   In 
Minn,  therefore  the  R.R.  Co.  is  not  an  insurer  In  such  cases  but  is  only 
bound  to  use  ordinary  care  simply  bound  lo  fasten  turn  table  in  ordinary 
fashion. 

The  doctrine  of  the  Keffe  case  is  therefore  limited;  to  make  deft. 


\ 


114. 
liable  there  must  be  reason  to  believe  first,  that  the  dangerous  object 
is  likely  to  attract  children;  second,  that  it  is  likely  to  result  in 
substantial  harm  to,  them .   (Prof ..Smith  fe^ls  confident  that  these  two 
limitations  ipust  bo/  applied  to  the'  Keffe  doctrine.)  thirdly,  deft,  is 
hot  liable  where  h,ls  land  is  left  , in  its  natural  condition,  1  Beven  2nd  ^ 
^d.,  109,  Note  1;  fourthly .  deft,  is  not  liable  if  the  child  knew  the 
ganger  and  knew  he  had  no  right  to  go  therfe;  fifthly,  deft,  is  not  lia- 
ble if  the  child  has  been  warned  of  the  da|iger  or  forbidden  to  go  on  the 
land,  cfrovided  the  child  is  old  enough  to  understand  and  remember  the 
warning  or  prohibition   The  authorities  are  not  so  clear  on  this. 

In  79  Texas  356  the  court  held  that  the  R.R.Co.  was  not  exonerated 
where  older  boys  set  the  turn  table  in  motion,  their  intervention  did 
not  break  the  causal  connection. 

SUCTION  III. 
Puty  of  Oare  towards  Licensee. 

HOUNSLLL  V.  smn,   p.  279,  7  ::om.  Bench  Reports,  Ivew  Series, 
731,  ISSO. 

Declaration  alleged  that  defts.  were  seized  of  a  certain  wat 
waste  land  upon  which  was  a  quarry;  that  this  land  was  unenclosed  and 
that  all  persons  having  occasion  to  cross  it  had  been  accustomed  to  do  so 
without  hindrance  and  with  the  permission  of  the  owners;  that  the  quarry 
was  dangerous  to  persons  who  might  accidentally  stray,  but  defts.  negli- 
gently left  it  unguarded,  whereby  plff.  was  injured.   Demurrer,   HELD,' 
that  if  one  accepted  a  tacit  permission  to  cross  land,  such  as  that  in 
this  case,  he  accepts  it  st  his  peril.   Owner  of  the  land  is  not  boun: 
to  guard  him  from  dangers  of  which  he  is  unaware. 

The  passing  over  deft's  land  had  gone  so  far  that  until  deft,  gave 
notice,  he  could  not  prohibit  the  crossing  of  his  land.   Plff.  by  rea- 

Plff.  claimed  to  recover  on  the  ground  of  being  a  licensee;  he  is 
such  only  by  reason  of  deft's  not  objecting.   The  case  holds  that  the 
owner  of  land  is  under  no  more  obligation  to  keep  his  land  i]  safe  condi 
tion  for  licensees  than  for  trespassers. 

'^•SARCON  V.  THOMPSON,  p.  2S1,  Mass.  1889. 

Action  to  recover  for  injuries  caused  by^falling  into  a  hole  dug 
by  deft,  on  his  land  and  that  of  a  neighbor.   Plff.  was  a  bare  licensee, 
if  not  a  trespasser,  and  walkine  along  in  the  night  fell  into  the  hole. 
HF;LD,  that  she  could  not  recover.   A  bars   licensfe,  to  be  sure,  has  a 
right  not  to  have  force  negligently  brought  to  bear  upon  him,  but  as  a 
general  rule  he  goes  upon  the  i  -  n  =  --it   his  own  risk  ■-^"'■■'  r^ust  avoid  the 
dangers  at  his  peril. 

In  38  N.E.f?.  187  deft,  by  his  own  act,  caused  additional  danger  of 
which  plff.  had  no  notice.   Plff.  recovered. 

The  ruling  on  page  282  that  "an  open  hole,  which  is  not  concealed 
otherwise  than  by  the  darkness  of  night,  is  a  danger  which  a  licensee 
must  avoid  at  his  peril"  is  not  true  unless  the  danger  is  of  long  stand- 
ing. 


i 


115. 

GAUTRCT  V.  B3ERT0N.  p.  282.  Law  Reports,  2  Coninion  Pleas,  371, 
18S7. 

Declaration  that  deft,  was  possessed  of  a  close  of  land,  a  canal, 
a^nd  bridge  over  it,  which  land  and  bridge  persons  passing  along  that  way 
vj/e re  allowed  to  us3'  by  deft.;  tjiat  deft.,  knowing  the  premises,  kept  the 
ridfe'e  in  such  a  negligent  state  of  repair,  that  plff's  intestate, 
alking  over  it,  fell  and  was  killed.   Den-iurrer.   HELD,  that  deft, 
was  guilty  of  no  breach  of  duty  toward  plff.   The  bridge  was  not  in  the 
nature  of  a  trap.   The  persons  who  used  it  did  so  at  their  peril  as 
far  as  its  state  of  repair  was  concerned.   Declaration  does  net  even  al- 
lege that  deceased  was  unacquainted  with  the  state  of  the  bridge,  or 
that  it  was  not  in  same  condition  when  permission  was  first  given. 

No  allegation  that  danger  was  not  apparent  nor  that  it  was  not  known 
to  deceased,  nor  that  danger  being  one  not  readily  apparent  to  passers, 
//as  known  to  deft.   3o  the  case  is  like  Hounsell  v.  Sn-ith.   Plff.  of 
course  failed  on  his  declaration. 

CAMP55LL  V.  BOYD,  p.  2S8.  No.  Car.,  188H. 

Deft,  was  owner  of  a  mill  on  a  certain  stream.   Along  the  stream  on 
each  side,  two  miles  froni  it,  ran  parallel  roads.   Deft,  opened  a  con-    '■ 
necting  way,  constructing  a  bridge  over  the  stream.   This  way  was  opened^ 
mainly  for  convenience  of  deft,  and  his  associates,  but  it  was  also  used  ^ 
by  the  public  with  knowledge  of  deft,  and  without  objection.   Through 
defective  condition  of  bridge,  plff.  was  injured.   H'iLD.  that  acquies- 
cence of  deft,  in  use  of  bridge  by  public  may  be  considered  as  an  implied 
invitation  to  use  it.   Hence  deft,  owed  a  duty  to  the  public  whom  he  in- 
vited to  keep  the  bridge  in  a  safe  condition. 

The  paragraph  on  p.  288  beginning  with  "the  law  does  noL  tolerate," 
is  not  true.   Deft,  is  bound  to  give  notice  of  concealed  dangers  known 
to  him,  but  not  of  apparent,  dangers,  or  dangers  unknown  to  him. 

The  court  laid  great,  stress  on  the  plff's  having  been  invited. 
The  deft,  knew  of  the  defect,  the  defect  vyas  concealed,  and  there  was  ■ 
nothing  to  put  passer-by  on  his  guard,  and  deft,  had  an  opportunity  to 
warn  plff.   Hence  deft,  was  liable. 

In  28  M.F..Rep.  187  a  barb  wire  fence  was  stretched  across  a  way 
which  the  public  had  used  by  license  of  the  owner.   HRLD,'  that  the  land 
o.vner  was  obliged  to  giee  some  reasonable  notice  of  the  revocation- 
obliged  to  give  notice  of  a  change  making  the  premies  more  danF,erous. 

GALLAGHER  v.  HUMPHREY,  p.  288,'  6  Law  Times  Report,  New  Series, 
e84,  186?. 

Declaration  that  deft,,  was  possessed  of  a  crane  fixed  in  a  certain 
passageway,  along  which  plff.  and  others  were  permitted  to  pass;  that 
the  crane  was  so  negligently  managed  by  deft's  servants,  that  a  large 
weight  fell  on  plff  while  he  was  lawfully  passing  along  the  way,  de 
doing  the  damage  complained  of.   HJLD,  that  a  permission  like  this 
does  not  impose  on  owner  a  duty  to  fence  off  dangers,  etc.;  it  is  merely 
a  permission  to  use  the  way  as  it  is.   But  it  does  impose  a  duty  on 


116. 
hini  not  to  be  actively  negligent  toward  passers-by,  and  if  hs  is  so  neg- 
ligent, he  is  liaole. 

A  licensee  only  has  a  right  to  use  the  premises  as  they  are  at  the 
time. 

The  duty  to  a  licensee  after  he  gets  upon  the  land  is  similar  to 
the  duty  towarfls  a  trespasser  after  he  gets  on  land,  as  regards  deft's 
conduct.   Although  nut  under  obligation  to  keep  land  in  condition  to  be 
trespassed  upon,  yet  after  .trespasser  gets  there,  he  is  under  obligatio 
not  to  hurt  him   by  act  of  negligence. 

Pf^UM.ME'R  V.  DILL,  p.  292,.  Mass.,  1892. 

Actioi)'  to  recover  damages  for  injuries  sustained  while  leaving 
deft's  building,  through  deft's  negligence  in  not  keeping  part  cf  build- 
ing safe,/  Plff.  did  not  so  there  to  transact  business  with  any  occu- 
pant of  tiie  building,  but  merely  for  hr  own  convenience  to  enquire  about 
matters  which  concerned  herself  alone.   H^iLD,  that  owner's  duty  cf  care 
in  keeping  building  safe  extends  to  those  who  come  there  by  his  invita- 
tion, express  or  implied,  but  not  to  those  who  come  for  their  own  con- 
venience, or  as  mere  licensees.   Implied  invitation  extends  to  these  on- 
ly who  come  for  a  purpose  connected  with  business  of  occupant.   Plff. 
here  does  not  come  under  that  head,  but  was  mere  licensee. 

Plff.  went  for  her  own  convenience,  and  not  on  business  for  deft. 
It  is  not  enough  that  it  is  business  cf  plff.  alone,  but  it  must  be  the 
business  which  is  cr  might  be  of  pecuniary  interest  tc  occupant,  in  or- 
der to  make  plff.-  a  business  visitor.   Read  this  case  after  Indermanor 
V.  Dames,  post  next.   Authorities  both  ways  as  to  whether  person  seeking 
work  on  premises  is  a  business  visitor;  101  N.Y.  S91  and  also  reported  in 
5^   Amer.  Rep.  718.  L.R.2  C.P.D.308.   Beggar  not  so.   As  to  peddlars, 
drum.miers,  book  agents,  etc.,  they  would  probably  not  be  held  to  have 
right  of  business  visitors  unless  their  presence  was  expected  by  deft,; 
very  doubtful  question.   Mote  G,  Clerk  ?•  Lindsell  on  T'orts,  372,  374, 
criticises  rule  that  occupant,  as  to  business  visitors,  must  keep  premise 
in  reasonable  safe  condition;  warning  of  danger  may  supply  such  care. 

S^JCTION  IV. 
Duty  of  Care  towards  Invited  Persons. 

INDI'JHMAUSR  v.  DAMIi.S,  p.  296,  Law  Reports,  1  Common  Pleas. 
27 '1,  1856. 

Action  to  recover  damages  for  injury  sustained  through  alleged  neg- 
ligence of  deft,  and  his  servants.   Plff.  was  a  gas  fitter  in  deft's 
sugar  refinery  on  business,  when,  it  being  dark,  he  fell  down  through 
an  unguarded  opening  30  feet  and  was  severely  injured.   The  opening  was 
a  shaft  four  feet  square  communicating  from  the  basement,  to  the  several 
floors  of  the  building,  necessary  for  defts'  business,  ^nd  necessarily 
unfenced  when  in  use.   Contended  for  deft,  that  he  was  not  obliged  to 
fence  the  shaft  at  all.   HRLD,  that  plff.,  being  in  the  building  on 
business  which  concerned  the  occupier,-  was  there  upon  his  implied  invita- 
tion,' and  was  not  a  mere  licensee.   Toward  him  occupier  owes  a  duty  to 


117. 
use  reasonable  care  to  prevent  his  being  injured  by  some  unusual  clanger 
on  the  premises,  such  as  the  unfenced  shaft  here. 

The  business  for  which  piff.  was  present  was  for  advantage  of  both 
parties,  hence  he  is  said  to  have  been  there  by  implied  invitation. 

iN'vitation  as  used  technically  does  not  mean  invitation  as  used  or-' 
dinarily;  business  visitors  would  be  better.   Outy  towards  these  is 
greater  than  that  to  licensee;  ncL  only  to  warn  of  concealed  dangers,   V 
but  to  take  reasonable  care  to  ascertain  whether  there  are  concealed  dan- 
gers.  Business  visitor  is  one  who  cones  in-iplisdly  on  invitation  of  ow-  j 
ner  on  business  whdoh  is  or  might  be  of  pecuniary  interest  to  owner. 

[licenses  is  used  sometimes  to  mean  that  express  permission  is 
given,  and  at  other  tin;es  to  nean  license  by  sufference.   One  who  goes 
upon  land  without,  ownerSs  permission,  takes  risk  of  apparent,  (not  hidden) 
dangers.   Owner  owes  duty  to  warn  licensee  of  concealed  dangers  known  to 
owner.   Occupant  and  licensor,  or  owner,  is  not  liable  for  failibg  tc 
take  ordinary  care  to  ascertain  whether  there  is  danger  or  not.   Althoug 
he  is  bound  to  give  notice  of  such  dangers  when  he  has  such  knowledge,   ; 
he  is  not  bound  to  acquire  such  knowledge  for  the  benefit  of  the  licensee], 
See  Olerk  ^/Lindsell  on  Torts  37S.374. 

SOUTHCOTi^J  &   3TANLti:Y.-  p.  ?.03.  1  Hurlstone  &  Nomman,  2-47,  1S55. 

L'sclaration  that  deft,  was  possessed  of  a  hotel,  into  which  be  had 
invited  plff.  as  a  visitor;  that  there  was  a  glass  door  which  plff.  had 
to  cpen   in  leaving,  and  which  through  negligence  of  deft,  was  then  in 
such  insecure  and  dangerous  state  that  when  plff.  opened  it  a  large 
piece  of  glass  fell  on  hini  and  injured  him.   Demurrer.   HFLD,  that  the 
rule  which  applies  to  servants  applies  also  tc  visitors  in  a  house. 
Servant  undertakes  to  run  all  the  ordinary  risks  of  service,  including 
those  arising  from  negligence  of  fellow  servants.   Similarly  visitosv-on 
entering  a  house,  takes  his  chances  with  regard  tc  neeliiJHnt  omissions  of 
master  or  his  servants. 

On  demurrer  tc  declaration,-  which  stated  that  plff.  was  there  as  a 
visitor',  not  as  a  paying  guest.   No  allegation  that  deft,  knew  of  defec- 
tion in  door.   Oase  holds  that  person  invited  in  ordinary  sense,  of  the 
word,  not  as  a  business  visitor,  has  no  more  right  than  a  licensee. 
Strong  argument  against  use  of  word  "invited." 

This  case  is  law  in  lingland,  but  has  been  strongly  tutacked. 

DAVI-  V.  CliNTRAL  CGNGRfcSATIONAL  SOOIKTY,  {«ass.,.lS30  (p. 30^.) 

Fort  for  injuries  occasioned  by  a  fall  while  passing  out  from  .  . 
deit's  -  .ohurch.    Plff.  had  been  attending  a  conference  at,  the  church 
in  response  to  a  general  invitation  which  had  been  sent  tc  her  church 
and  others,  and  was  injured  while  coming  out,,'  through  alleged  negligence 
of  deft,  in  having  premises  in  a  dangerous  condition.   A'erdict  directed 
for  deft.   HiiiLD,  that  fact,  that  plff.  was  there',  not  by  mere  license, 
but  by  invitation,  imposed  on  deft,  t^e  duty  to  keep  the  premises  in  a 
safe  condition,  notwithstanding  that  no  pecuniary  benefit  was  expected 
by  deft.   Question  whether  or  not.  deft,  exercised  reasonable  care  shouia 
have  been  left  to  the  jury.   '^le;':  trial  ordered. 


118. 

Business  visitor  is  confined  to  persons  who  are  invited  on  what  is 
or  may  be  the  pecuniary  interest  of  occupant.   Court  hers  lays  ^reat 
stress  on  the  deft's  invitation,  but  decision  can  be  supported  on  the 
ground  that  walk  was  not  properly  guarded  and  lighted  so  that  under  the 
circumstances  deft,  ndght  have  been  liable  to  a  licensee.   Colt  probably 
would  hape  ae'cided  Southcote  v.  Stanley  contra  to  Fnglish  court,  which 
case  has  been  severely  criticised  in  '^ingland,  because  gusst  does  not 
stand  in  the  same  relation  as  a  servant.   See  Pollock.   Tn  (J.S.,  ques- 
tion is  open,  but  tendency  is  to  differ  from  S.V.S. 

S;\E!lNY  v.  OLD  COLONY.  &c.  R.R.Co.,  p.  308.- h'ass. .  1865. 

Tort  for  personal  injuries  sustained  by  being  run  over  by  deft's 
cars.   Flff .  was  crossing  the  railroaa  on  a  private  way,  which,  by  per- 
mission of  def ts. ,  had  been  used  by  the  public  for  several  years,  and  at 
which  they  had  stationed  a  flegman.   Latter  made  a  signal  that,  there  was 
ti!i:e  to  cross,  but  was  struck  by  a  car.   Contended  for  defts.  that 
they  v/ere  notliable  as  plff's  use  of  the  crossing  by  licese  was  at  his  ovv 
own  risk.   Judge  charged,'  that  defts.  were  not  bound  to  keep  a  flagman 
there,  but  as  they  did,,  they  were  responsible  tor  his  negligence.   Ver- 
dict for  plff.   HfiLD,'  that  the  charge  was  correct.   Were  passive  ac- 
quiescence by  an  owner  in  a  certain  use  of  his  land  by  others  involves 
no  liability,  but  if  he  expressly  or  in.pl iedly  induces  theai  to  enter  on 
his  prsfPises,  hs  beccjries  bound  to  see  t.hat  they  are  reasonably  safe. 
Facts  of  this  case  show  that  the  license  to  use  the  crossing  had  been  en- 
joyed under  such  circufustancds  as  to  an:ount  to  an  inducement  to  public  to 
use  it  as  a  highway.   By  keeping  a  flagrrian  there  they  became  liable  for 
his  negligence.   Judgment  fon  the  verdict. 

■Phis  case  is  often  citea  as  deciding  that  aefts.  were  bouna  iz   Keepv 
crossing  in  order,  but  it  held  only  that  if  flagman  was  there,-  he  must 
not  be  actively  negligent.   Railroad  gave  public  to  understand  that  it 
was  safe  to  cross  by  keeping  a  flagman  h..here  to  give  signal.   Case  is 
clearly  right  in  itself;  even  though  plff.  were  only  a  licensee,  if  pub- 
lic ivas  only  a  licensee  it  would  have  .right  to  be  protected  against  or 
warned  of  hidden  dangers.'  It  seems  as  if  there  was  greater  right  for 
public  against  railroad  where  the  latter  has  fitted  up  crossing  so  that 
public  may  pass  more  easily.   Argument  vs.  this  in  Thorndyk's  argument, 
in  155  Mass.  472;  22  S.£.R.  551;  argumepl"  vs.  Thorndyke  in  50  N.i\.R.669. 
/^s  to  liability  of  land  owner  to  persons  who  are  in  exercise  of  right  al- 
though not  on  inbitation,'  as  sheriff  serving  writ.   Courts  probably  hold 
that  it  is  at  least  as  high  as  that  towards  licensee.   Occupant  could 
hardly  be  held  liable  if  he  had  no  reason  to  suppose  anybody  would  come 
in.   34  N.&.R.  1113,  court,  held  fireman  was  no  belter  off  than  a  licen- 
see.  32  M.!^;.R.  188,  111.'   185  .Mass.  116.,  138  Mass.  315,- 33  N.Y.  Super- 
ior Ct.  133,  seem  m.ore  inclined  to  favor  plff-   ^^s  to  premises  in  pos- 
session of  tenant,  where  third  person  is  hurt  by  defect,  as  to  when  plff. 
should  sue  tenant  and  when  landlord,  see  Bev.  on  Negli.  1st  Hd ^"^074, 1075 
2  S.&  R.  on  Neg.  4th  Sd.,  sees.  708-to  71:^  ,  j^ 

Firemen  only  licensee:  29  Atl.  R.  6;  d   All.  K.  552.     '"""^^ 


-vN 


119. 

Duty  of  land  owner  to  refrain  from  harming  by  negligence  after  pres-J 
snce  is  known  is  the  same  with  regard  to  trespassers,  licensees,  and  bus- 
iness visitors. 


As  to  defects  in  the  premises  his  duty  is  more  difficult  to  state. 
How  is  it  as  to  trespassers?   Practically  no  duty.   /'S  to  licensees 
duty  is  to  warn  him  of  concealed  dangers  known  to  occupant,  but  no  duty 
to  ascertain  dangers.   Bound  to  give  licensee  benefit  of  his  knowledge, 
but  not  bound  to  acquire  more  knowledge.   To  business  visitor  there  is 
additional  duty  to  use  due  care  in  discovering  dangers  and  giving  warn- 
ing.  But  this  is  not  statement  ordinarily  made,  which  is,^  that  duty 
is  to  keep  premises  in  reasonably  safe  condition  for  business  visitors. 
C  Sr  I.   371, n.c.   Often  hard  to  determine  who  are  business  visitors:  101 
ij.Y.  391;  L.R.  ?  3.  .   .  108,  contrary  cases  as  to  man  entering  to  seek 
employment.   ^^hen  it  is  once  determined  that  a  li.an  is  s  business  visi- 
tor there  is  no  doubt  as  to  duty  owed  him. 

i'.here  there  is  no  representation  that  a  railroad  crossing  is  a  high- 
way, duty  should  be  only  that  toward  licensee.   You  can  find  any  state- 
ment you  want  on  this  point  in  the  books.   Sweeny  case  all  right  as 
there  was  a  representation  at  the  moment  that  the  road 


•I^  O   O  :J  I  c; 


:^HAPTKR  VIII. 

HJXThA   HAZAhUUUt;   LJ^uUpAflONS.        -        ACTING   AT    bl'hil.,.      -        DtJIV   0^ 

INSURING  SAFETY. 

FLETCHER  v.  RYLANDS,  p.  316.  "^ixchequer.  1885. 
Action  to  recover  damages  for  an  injury  caused  to  plff's  mines  by 
watpr  flowing  into  them  from  a  reservoir  which  deft,  had  constructed. 
Deft,,  had  employed  competent  persons  to  construct  the  reservoir  to  supply 
their  mill.   Neither  deft,  nor  the  workmen  knew  that  coal  had  been 
worked  under  or  near  the  site  of  the  reservoir,  but.  as  a  matter  of  fact 
there  was  old  coal  workings  under  the  reservoir,  communicating  by  means 
of  other  old  workings  with  plff's  mines.   In  the  course  of  excavating 
for  the  foundation  of  reservoir  shaft,s  filled  with  rubbish  were  unearthed 
but  iL  was  not  known  that-  they  led  down  to  coal  workings.   Defts.  were 
in  no  way  negligent,,,  but  the  persons  employed  by  them  did  not  use- rea- 
sonable and  proper  care  with  respect  to  the  shafts  so  discovered,   i'rhen 
the  reservoir  was  partly  filled,  to  che  of  the  shafts  gave  way,  water 
poured  down  through  the  old  workings,  into  plff's  mine,  doing  serious 
damage.   HHiLD,  in  H-xchequer,  that  plff .  could  not  recover,  as  defts. 
werenot  negligent.   Reversed  in  iijx.  Cijamb.  where  it  was  HELD,  that  plff 
could  recover,  on  the  ground  that  the  person  who  for  h.is  own  purposes 
brings  on  his  land  and  collects  and  keeps  there  anything  likely  to  do 
mischief  if  it  escapes,  must  keep  it  at.  his  peril,  and  if  it,  escapes, 
must  make  good  the  damage  done.   Such  things  as  cattle,  water,  filth, 
stenches.   This  judgment  was  affirmed  in  t,he  House  of  Lords,  Lord 
Cairns  drawing  a  distinction  between  a  natural  and  a  non-natural  use  of 
land,  holding  the  land  owner  absolutely  liable  for  damage  caused  by  lat- 
ter . 


120. 

J  ho  a!3jQ['iL.y  ci  me   rxchequer  said  practically  that  deft,  was  In  no 
fault,  and  that,  if  he  is  not  in  fault,  he  is  not  liable.   It  is  true 
that  there  was  no  personal  fault  on  the  part  of  deft.,  but  the  persons 
he  employed  were  negligent  with  reference  to  the  shafts  discovered  in 
not  providing  for  the  sufficiency  of  the  reservoir  to  bear  the  pressure 
of  the  water,  which  when  filled  it  would  have  to  bear.   Frof .  Sirdth 
thinks  the  case  ought  to  have  been  decided  on  this  ground,'  that  deft,  was 
responsible  for  the  negligence  of  these  persons  even  though  they  were  in- 
dependent contractors.   The  case  seems  to  be  v;rong  on  this  point. 
Bish.  Non-Oon.  Law,  sec.  829,  note.   125  U.ass.   240.   The  nature  of  the 
duty  was  such  that  deft,  could  not  exonerate  himself  by  the  employment 
of  an  independent  contractor.   The  courts  above  ignored 
this  point.   They  assumed  that  there  was  no  negligence  on  deft's  part, 
and  tjien  went  on  to  decide  the  case  in  the  absence  of  negligence. 

The  st.udent  should  commit  to  memory  the  sentence  st  the  top  of  p. 
333,  it  is  the  ratio  decidendi  of  the  case. 

Next  in  importance  to  this  is  Cairns'  statement  about  natural  and 
non-natural  user  of  land. 

3ranworth  goes  simply  on   the  ground  that  plff.  has  been  damaged  and 
not  on  the  question  of  lack  of  care  by  deft.   This  is  the  oldest,  of  the 
three  theories  in  the  case.   Cranworth's  theory,  in  the  first  place, 
cannot  possibly  stand.   Cranworth's  theory  would  simply  amount  to  trans- 
ferring the  hardship  from  one  to  the  other.   It.  imposes  the  entire  loss 
on  the  faultless  deft.,  merely  because  he  is  the  innocent  instrument 
through  which  the  damage  occurred.   But  it  might  be  suggested  in  favor 
of  the  decision  in-  this  case,  that  as  deft,  had  the  profits  of  the  res- 
ervoir, he  should  pay  the  damages  out  of  them. 

For  a  criticism  of  the  maxini:  sic  utere  ^.-c.  See  9  Harv.  Law  Rev. 
14  to  17. 

By  nat.ural  and  non-natural  use  Lord  Cairns  seenis— to  ivjve  had  in  mind 
a  distinction  between  the  use  of  something  already  on  tfi^  land  and  some- 
thing not  on  the  land.   Cairns'  distinction  is  not  n.aint.airfable;  it  is 
crit.icized  on  p.  53  of  the  Cases.   Cairns'  view  as  tp  doing  it  at  deft'b 
peril  is  criticized  in  Markby's  '''le.  of  Law  3rd  ^^'d . ,  sec.  6^3 .   See  also 
33  A.tl.  Hep.  286  bottom  of  289.   An  important  case  is  Coal  Co.  v.  Pans- 
derson,  113  Penn.  state  126.  contra  is  33  ni.   Rep.  285, 

As  to  the  falling  of  a  house  being  prima  facie  evidence  see  57  N.Y. 
567,  3.G.15  Am.  Hep.  530;  L.R.  5  Q.B.  411,  S.C.L.R.  6  0.8.759;  40  Pac. 
Rep.  1020,  autjiorities.  41  N.F.R.  61.  ^'oc   a  discussion  of  the  Sander- 
son case,  supra,  by  Pepper  see  31  Am.  Law  Register  n.s.38  to  44.'   For 
t.he  history  of  that  case  by  Guest  see  53  Am.  Law  Reg.  n^-S.p.  1  and  at,  p. 
97.   145  Penn.  State  324  is  distinguished  frcfli  the  Saj^ers'on  cas^t  as 
here   the  owner  was  bringing  something  on  the  land  f  rqjjf  a  distanc3(   In 
Nauck  V.  Co.  153  Penn.  State  365,  S.G.  34  Am.  Stat.e  F(ep.  710  th/oil  was 
not  taken  out  on  the  land  through  which  it  was  carried. 

L.K.  1  Indian  appeal,  364,  J.^adras  R.R.  v.  Zemindar,  supports  prin- 
cipal case  because  the  tanks  are  absolutely  necessary  for  development  of 


121. 
India;  decision  of  .judges  in  India  is  more  important  than  judges  in  I'.ng- 
land.   41  Pac.  R.  (Mont.)  431  is  like  Indian  case,  but  here  ditplies 
were  niade  to  carry  water  through  the  country  for  irrigating  and  ditch 
gave  way  without,  negligence;  court  decided  like  Indian  case.   Sinsilar 
case  in  3aia. 

As  to  saying  that  deft,  is  liable  in  tjiese  cases  because  he  ccniniitt- 
ed  a  nuisance  -  L.R.  2  Q.B.  247  says  it  prolongs  the  dispute  because 
nuisance  may  mean  something  which  is  not  actionable  and  using  it  here 
does  not  advance  the  reasoning  at  ail;  simply  a  circle  -  it  is  a  nui- 
sance because  it  is  actionable  and  it  is  actionable  because  it  is  a 
nuisance.   Also.  Ccoley  on  T'-,  2  Ed.  672;  -3  Blk.  215;  1  Harv.  Law  Rev.- 
123,  125,  Langdell. 

Courts  of  every  country  will  probably  hold  that  there  are  some  acts 
which  if  done  in  that  community  are  extra  hazardous  and  deft.  must,  be 
an  insurer  as  to  such  acts.   8ut  the  tisst.  as  to  what  is  extra  hazardous 
varies  in  the  same  community  at  different  dates,  as  Fulton  would  proba- 
bly have  been  held  liable  if  his  first  steam  boat  had  burst  and  caused 
injury,  though  Losee  case  in  N.Y.  is  contra  now  when  steam  is  so  gener- 
ally used.   See  Pollock  on  Law  of  Fraud  in  British  India.   Thoughts  ol 
Pascal,  London  Ed.  1883,  p.  SI  is  wrong;  facts  are  different,  in  differ- 
ent countries,  as  keeping  an  elephant  in  England  and  the  same  act  in  In- 
dia.  Pollock  on  T.  2  Ed.  420,  421,-  426;  magnitude  of  danger  and  diffi- 
culty of  proving  actual  negligence  as  the  specific  cause  of  the  harm. 
Holmes  on  Com  Law,  154:  The  possibility  of  a  great  danger  has  the  same 
effect  as  the  probability  of  a  less  one,  and  the  law  throws  the  risk  of 
the  venture  on  the  person  who  introduces  the  peril  into  the  community. 
Innes  on  Torts:  ?uch  things  as  tigers,  etc.,  however  carefully  kept,  im- 
peril the  rights  of  others  because  they  cause  danger  to  rights  in  the 
absence  of  a  degree  of  care  and  prudence,  the  continual  exercise  of  which 
cannot  be  expected.   Degree  of  care  necessary  is  so  great  that  it  cannot 
be  expect.ed  that,  people  will  continually  use  that  care,  therefore  thej 
ought  to  be  held  to  be  absolute  insurers.   £xperim.ents  and  new  msthocs 
will  largely  be  held  to  be  at  the  ri^k  of  the  experimenter;  courts  will 
also  be  very  slow  to  hold  doctrine  of  insurance  as  belonging  t,o  user  cf 
any  kind  which  is  common  or  necessary  or  highly  beneficial. 

Blackburn's  test  at  tpp  of  page  333;  improved  by  insert.ing  "likely 
to  escape"  after  word  "Anything."   If  we  adopt  Blackburn's  test.,' we 
will  hold  owner  of  land  liable  for  many  things  necessarily  done  upon 
land.   As  to  the  analogies  mentioned  in  case,  some  of  them  are  excep- 
tional, p.  353.   Blackburn  and  Eramwell  in  their  analogies  have  taken 
specific  cases  and  ignored  other  specific  cases  which  are  not  so  ex- 
ceptional but  more  ample  in  their  application.   Analogies  in  support  of 
cases  are,  trespasses  by  cat.tle  and  liability  for  fire.   As  to  carriers 
and  innkeepers,  great,  liability,  nicve   than  ordinarily,  is  imposed  upoi. 
them  because  they  have  a  chance  to  charge  extra  price,  knowing  their 
extra  liability,  and  that,  the  public  has  to  trust  people  in  such  public 
employments.   As  to  alkali,  it  is  answered  in  Brown's  Case  following. 


1??. 

As  to  filth,  it  is  the  same  think  as  principal  case  over  again.   ?.hen  a 
;iian  builds  a  d&^,   his  precise  purpose  is  to  keep  the  water  back  and  he 
can  ascertain  h(3i\v  much  land  will  be  covered  by  the  water;  complaint  is 
that  he  persisj,'ed  in  holding  back  water,  although  he  knew  it  flooded 
the  land.   C^'cley  on  T. ,  2  Ed.  677  to  6S0,  N.S.   But  as  to  water  over- 
flowins  land/below  by  bursting  dair.,  it  is  not  so.   Jn  latter  case,  deft, 
is  also  a  Ipser  by  the  accident,  while  in  former  case  he  overflows  land 
for  his  gafn.   As  to  selling  poisonous  articles  without  proper  label, 
it  is  clearly  negligence.   Oases  of  damage  by  blasting  rocks  -  authori- 
ties are  An  conflict  in  U.S.   Hay  v.  Cchoes  Go.  2  N.M.  159;  S.G.  51  Ani. 
Dec.  279i  Beeth  v.  R.R.  140  N.Y.  237;  S.G.  37  Am.- D.  State  Reports.  552; 
9  Lewis /aui.  R.R.  ?■  Gorp.  Gases,  92  with  important  note.   As  to  analogies 
in  general,  see  2  Austin  on  Jur.  3  Fd.  655,  65't ,  1030  to  1036.  ' 

As/ to  authori  ,y  of  F.  v.  R.,  subsequent  cases  in  fingland  try  to  dis- 
tinguish it.   Pollock's  Lectures  on  Law  of  Fraud  in  India,  p.  53,  54; 
it  is  followed  only  in  the  letter  and  not  in  the  spirit.   5  Harv.  L.R. 
186,  N.l.   In  U.S.  majority  of  the  states  have  not  decided  the  point. 
Gahill  V.  Eastman,  18  Minn.  384,-  inclines  towards  principal  case.   Mass. 
seems  to  accord.   N.J.,  N.H.  and  N.'Y.  are  strongly  contra. 

Two  tendencies  now;  first,  to  extend  liability  for  negligence,  i.e., 
for  consequences  of  nesligence  in  fact;  second,  to  restrict  liability  in 
absence  of  negligence  or  wrongful  intention. 

If  Fletcher  v.  Ry lands  is  to  be  adopted  at  all.  Prof,  'indih   thinks 
Blackburn's  rule  (see  p.  333)  should  read,  anything  likely  to  escape  and 
do  mischief  rather  than  as  it  does.   But  he  doesn't  agree  with  it  even 
then. 

NIGHOLS  V.  MARSLAND-,.  p.  343,  Exchequer,  1873. 

Action  by  surveyor  for  Gounty  of  Ghester,  for  damage  caused  to 
bridges  by  bursting  of  dams  on  deft's  land,   A  stream  ran  through  deft's 
land,  he  dammed  it,'  and  made  three  pools,  the  water  ran  on,^  under  plff  s 
bridges.   A  more  terrific  thunder  storn.  than  had  occurred  for  years 
caused  stream  to  overflow,  to  back  down  embankment  and  to  wreck  bridges. 
•Jury  found  that  the  accident  was  caused  by  vis  major;  that  the  rainfall 
was  most  excessive  and  there  was  no  negligence.   H'''LD,  in  Exchequer 
(and  affirmed  in  Fxch.  Gh.)  that  plff.  could  not  recover,  as  the  injury 
was  the  act  of  God.   Differs  from  Fletcher  v.  Rylands  in  that  there 
deft,  did  the  injury  directly,  though  in  ignorance.   Here  deft,  merely 
kept  the  water,  which  was  set  loose  by  another  agent  over  which  he  had  nc 
control.   As  in  case  of  cth&r  duties  imposed  by  law,  act  of  (Jbd  or  pub- 
lic enemy  is  an  excuse.  J"' 

Here  the  forces  of  nature  which  broke  the  dam  were  g^l^itation  and 
an  unusual  storm.   The  form.er  is  a  force  constantly  at  work,  the  latter 
is  one  which  no  one  would  expect  and  forsee.   Such  forces  of  nature  as 
one  could  not  reasonably  be  expected  to  guard  against  are  acts  of  Sod. 
This  case  establishes  an  exception  to  Hylands  v.  Fletcher  where  the  loss 
is  occasioned  by  an  act  of  3od.   Under  this  rule  the  jury  can  practical- 
ly mitigate  the  rule  in  Hetcher  v.  Rylands  whenever  it  seems  too  hard. 


123 . 
■•ee  Pollock  on  Torts  A'Snd  ?d.  42S. 

5  Harv.  Law  Rev.  186  note  has  some  good  remarks  upon  how  Fletcher  v. 
Sylands  is  treated /in  England. 

BOX  V.  ..KIBB.  p.  349,.  p;xchequer,  1879. 

Action  to  recover  damages  caused  by  overflowing  of  deft's  reser- 
voir.  The  rese/-voir  was  supplied  with  water  fron^  a  main  drain,  into 
which  t.he  surplus  water  passed  again.   The  overflowing  was  caused  by 
the  emptying  of'  a  large  Quantity  of  water  into  the  main  drain  above 
deft.  fro.T;  a  reservoir  belonging  to  a  third  party  and  an  obstruction, 
unknown  to  defjt.  in  the  main  drain  below  cutlet  of  his  reservoir.   There 
was  no  negligence.   H^LO,  that  deft,  was  not  liable,  as  he  was  guiilty 
of  no  breach  ,of  duty  which  caused  the  injury,  but  latter  arose  from 
acts  of  third  party,  which  deft,  had  no  means  of  preventing.   Rylands  v. 
B'letcher  is  distinguishable,  for  here  the  water  which  did  damage  was  not 
accumulated  by  deft,  but  has  come  from  elsewhere  and  been  added  to  what 
was  properly  and 'safely  there.   Judgir.ent  for  deft. 

At  first  glance  this  case  would  seem  to  come  under  Fletcher  v.  Ry- 
lands but  instead  establishes  the  principle  that  if  the  escape  of  the 
dangerous  article  can  e  ascribed  to  the  wrongful  act  of  a  third  party, 
the  deft,  is  not  liable.   It  is  a  recognized  exception  to  Fletcher  v. 
Rylands  in  iT.gland  and  would  probably  be  follo'^ed  in  the  U.S.   If  Flet- 
cher v.  'Rylands  is  correct,  this  exception  ought  not  to  aoply  to  a  case 
where  deft,,  could  reasonably  foresee  the  wrongful  act, 
but  it  is  doubtful  whether  the  court  would  actually  hold  a  deft,  liable 
in  such  a  case. 

MARSHALL  v.  WELWOOD,  p.  352.  N. J...  1873. 

Suit  for  damages  done  to  plff's  property  by  the  bursting  of  a  boiler 
of  9  steam  engine  on  adjoining  land  of  deft.   Judge  charged  that  deft, 
was  liable,  irrespective  of  any  question  of  negligence.   Verdict  for 
plff .   .Votion  for  new  trial.   HSLD,  that  this  charge,  though  supported 
by  Fletcher  v.  Rylands  is  wrong.   The  judgment  in  that  case  extends  tie 
rule  applicable  only  to  a  few  very  exceptional  cases,  such  as  that  of 
trespassing  cattle,  into  a  general  principle.   No  foundation  for  the 
principle  that  a  man  is  liable  for  damage  caused  by  lawful  acts  done  with 
care.   There  must  be  culpability.   It  was  a  question  for  the  jury  in 
this  case  whether  there  was  any  neglect  on  the  part  of  deft. 

It  is  so  held  also  in  Losee  v.  Buchanan,  51  N.Y.  ^75. 
BRO^N  V.  30LLINS..  p.  357,  N.H.,  1873. 

Trespass  to  recover  value  of  a  stone  lamp-post  situated  in  front  c: 
plff's  place  of  business.   Deft,  was  driving  a  pair  of  horses  near  a 
railroad  crossing.   The  horses  were  frightened  by  an  engine,'  became 
unmanageable,  and  ran  against  the  post  in  question,  breaking  it.   Oeft.. 
was  not  negligent.   HSLD,  that  the  extension,  in  Fletcher  v.  Rylands, 
of  the  doctrine  that  in  trespass  damage,  and  not  culpability,  was  the 
thing  to  be  looked  at,  is  contrary  to  principle  and  analogy.   P'ault 
must  be  shown.   A  wan   is  not  liable  where,  as  in  this  case,  superior 
force  overpowers  hin:  and  uses  hini  or  his  prooerty  as  an  instrument  of 


\2&. 
violence. 

A  driver  of  horses  is  not  liable  for  damages  to  real  estate,  done 
by  them,  if  he  loses  control  of  th-n  '.■ithout  any  negligence  or  fault  on 
his  part. 

This  casi  differs  a  good  deal  in  facts  from  Fletcher  v.  Rylands  but 
that  case  is  considered  .liuch  in  the  cpinicn.   This  is  one  of  the  ablest 
opinions  against  that  case.   This  and  Marshall  v.  Aelwood  should  be  stu- 
died carefully.   They  contain  the  chie^f  anti  F.v.R.  arguments,   K.v.R. 
has  not  been  overruled  in  England  and  there  is  a  tendency  to  fellow  it  in 
some  states  of  this  country. 

OHAFffiR  IX. 
LIABILITY  FOR  FIRS  OR  fijXPLOSIViilS. 

OFAN  V.  Mccarty,  p.  368,  9  victoria.   2  Upper  Canada  Q.B.,44S. 

Action  on  the  case  for  negligently  keeping  fire  which  deft,  had 
kindled  on  his  own  land,  by  reason  whereof  it  spread  to  deft's  land  and 
did  damage.   Deft,  used  due  care,  but  a  high  wind  sprang  up  causing 
the  damage..   It  wa-.  soughL  to  hold  deft,  to  absolute  liability.   BJ;LD, 
that  this  is  not  one  of  the  cases  where  a  party  is  held  liable  regardless 
of  negligence.   Here  deft,  was  engaged  in  doing  a  necessary  act  wit.h 
due  care,  when  an  accident  was  caused  by  act  of  GcJ .   "c  hold  hirr^  lia- 
ble would  be  to  depart  iron  settled  principles. 

If  we  apply  Fletcher  v.  R.  deft,  would  have  been  responsible.   but 
court  holds  that  lighting  the  fire  is  indespensable;  such  acts  are  so 
corr,n;on  and  so  necessary  that  deft,  niust  not  be  held  liable.   Law  in  ''ng- 
le.nd  is  unsettled  but  in  U.S.  it  is  well  settled  in  accord  with  this 
case;  that  one  who,  without  negligence,  sets  a  fire  on  his  .. 
premises  for  lawful  purposes  -and  watches  it  with  care  after  it  is  set,  is 
not  liable  for  damages  caused  by  it  in  absence  of  negligence.   American 
doctrine  ss  to  fire  applies  to  manufacturing  and  mechanical  purposes. 
AouU  probably  also  hold  as  to  setting  fires  for  amusement. 
BACHFLDIvR  v.  HFAGAN,  p.  372,  Maine,  1840. 

Action  on  the  case  to  recover  damages  alleged  to  have  been  done  to 
plff's  land  by  deft's  negligence  in  setting  a  fire  on  his  own  land  and 
not  carefully  keeping  it.   Judge  charged  that  burden  of  proof  was  on 
Dlff.  to  show  negligence  on  part  of  deft.   Verdict  for  deft.   Excep- 
tions.  HFLD,  that  charge  was  correct,.   No  absolute  liability  on  one 
who  sets  a  fire  in  his  own  field.   Negligence  is  the  gist  of  the  action 
and  plff .' must  prove  it. 

The  instruction  given  in  the  last  six  lines  p.  372  of  the  Cases  is 
incorrect.   Proof  beyond  a  reasonable  doubt  is  required  only  in  cri.niinsl 
cases.   In  a  civil  action  you  only  have  to  prove  a  balance  of  probabil- 
ity unless  in  some  courts.   Unless  the  facts  shewed  arson  here,  the 
court  erred  in  saying  that  the  plff.  must  prove  beyond  a  reasonable 
doubt. 

Deft,  is  not  liable  without  negligence  and  the  burden  is  upon  plff. 
to  show  that  the  deft,  was  neglicsnt. 


125, 
BURROUGHS  v.  HOUSATONIC  R.R.  CO.,  p.  374,  Conn..  1842. 

Action  on  ths  case  to  recover  damages  for  plff's  building  burned 
by  means  kt   a  spark  from  locomotive  of  deft's.   Judge  charged  that  plff. 
could  recover,  irrespective  of  negligence  on  part  of  defts.   HELD, 
that  this  w^^  wrong.   If  defts,  were  doing  a  lawful  act  in  a  careful 
lianner,  they >/ere  guilty  of  no  wrong,  and  hence  not  liable.   Negligence 
iiust  be  provedv  to  charge  them. 

Court  beloK;  thought,  this  was  an  extra  hazardous  use  of  land  and  he 
must  do  it  at  his  peril.   But  State  had  authorized  deft,  to  do  it  care- 
fully and  not  negMgently.   Effect  of  charter  as  protection  is  first, 
against  indictment  \for  public  nuisance  if  road  is  run  in  usual  manner, 
and  secondly,  it  S3'en:s  to  be  regarded  by   weight  of  authority  as  pre- 
venting the  courts  from  holding  that  this  is  an  extra  hazardous  use. 
Legislature  could  not  authorize  railroad  to  run  its  engines  carelessly 
and  negligently.   Jhere  are  statutes  in  some  states  which  hold  railroad 
company  liable  irrespective  of  negligence  if  fire  is  started  by  locomo- 
tive sparks  which  statutes  are  generally  held  constitutional. 

^«here  deft.,  is  not  an  incorporated  railriad,  judge  would  probably 
allow  a  charge  to  jury  that  carriing  fire  around  in  Iccomitive  was  per 
se  negligence.   If  there  was  a  charter  from  Legislature,  courts  which 
adopt  E.v.R.  would  not  submit  to  jury  whether  it  was  negligence  as  a  mat- 
ter of  fact.,  to  do  precise  thing  that  Legislature  had  permitted  to  be 
done.   186  Wass.  239;  155  Mass.  532. 

HS5G  V.  LICHT.  p.  379,  New  York,  1S80. 

Action  for  injuries  to  plff's  buildings  caused  by  explosion  of  a 
powder  magazine  on  deft's  premises,   Plff.  contended  that  the  powder 
magazine  was  a  private  nuisance  for  which  deft,,  was  liable  in  damages, 
regardless  of  negligence.   Judge  charged  that  deft,  was  not  liable  unles 
negligent.   HI^^LD,  that  this  was  wrong.   If  the  powder  magazine  was  in 
closi  Gont.iguity  with  buildings,  it  would  doubtless  be  illegal,  and  ow- 
ner would  be  liable  for  all  damages  done.   Question  should  have  been 
left  to  jury  whether  under  the  circumstances  of  locality,  etc.,  deft. 
was  chargeable  with  maintaining  a  private  nuisance  and  so  liable  for 
damages  resultj.ng. 

3.3.  below,  16  Hun  257  contains  better  statement  of  facts.   Nuisanc 
per  se  is  an  actionable  tort.   Authorities  somewhat  in  conflict  but 
this  is  Smith's  view;  ons  who  manufactures  dangerous  explosives  or  who 
stores  them  in  large  quantities  in  such  a  locality  or  under  such  circum- 
stances as  to  cause  reasonable  fear  to  persons  living  in  the  vicinity, 
is  liable,  irrespective  of  negligence  in  the  mode  of  manufacturing  or  in 
keeping,  for  all  damages  by  explosion.   Query,  whether  authorities 
might  not  hereafter  justify  us  in  adding:  Unless  ^  case  of  st.orage  the 
magazine  is  located  so  as  to  endanger  as  few  pers(|is  and  as  little 
property  as  possible  and  yet  be  reasonably  accessijble  as  a  point  of  sup- 
ply and  distribution.   Taken  from  Trunkey,  J.  91  Pa.  St..  251.   Possi- 
bility of  a  great  danger  has  the  same  effect,  as  probability  of  a  less  one 
"treasonable  fear"  supra,  means  whether  person  of  average  nerve  ana  cour-  ' 


128. 
aee  would  be  put  in  fear.   In  the  U.S.  it  is  a  question  for  tjie  jury 
and  the  test  is  whether  the  owner  was  making  a  reasonfeble  use  of  his 
land. 

The  American  law  is  well  settled  that  if  a  aian  is  using  fire  on  his 
own  prendses  for  a  lawful  purpose, he  is  not  liaols  unless  for  negligence. 
Time,  place  etc.  may  show  negligence,  but  there'  must  be  negligence  to 
make  him  liable.   Some  courts  might  apply  the/ natural  and  non-natural 
user  test,  but  generally  in  this  country  the  above  rule  is  applied  with 
the  qualification  that  deft,  is  using  due  care  under  the  circumstances. 
It  would  make  no  difference  whether  the  fire  was  for  amusement  or  for 
business  purposes.   Cooley  2  iid.  p.  700,  but  Frof.  Smith  would  hold  the 
deft,  liable  as  the  reasons  for  a  contrary  decision  do  not  apply,  the 
fire  being  unnecessary  for  amusement. 

OHAPTSR  X. 
LIABILITY  OF  OWNER,  OR  KEEPER,  OF  ANIMALS. 
Section  1. 
Trespass  by  Animals  on  Land. 

.VEL.L3  V.  HOmUs,   p.  384,  iM.Y.,  1822. 

.Action  to  recover  for  damages  caused  by  deft's  horse  trespassing 
in  plff's  field.   Plea,  no  fence  around  the  field.   Demurrer.   HKLD,. 
that  every  unwarrantable  entry  on  another's  land  is  s  trespass,  whether 
the  land  be  enclosed  or  not.   A  person  is  equally  answerable  for  the 
trespass  of  his  cattle  as  of  himself. 

At  common  law  entry  by  cattle  is  the  same  as  entry  by  owner. 

At  common  law  there  is  a  fiction  that  all  land  is  enclosed. 
TONAWANDA  R.R.  v.  MUNGER,- p.  38^,  N.Y.,  13'ia. 

In  a  case  of  trespass  by  deft's  cattle  on  plff's  land,  it  is  imma- 
terial that  deft,  used  ordinary  care  in  taking  care  of  them.  Deft,  is 
bound  at  his  peril  to  keep  his  cattle  at  home. 

Rylands  v.  Fletcher  doctrine  applied  to  cattle.   No  defence  that 
even  extraordinary  care  was  used  to  keep  them  out. 
NOYI^S  V.  OOLBY.  p.  385,  N.h.,  1855. 

Trespass  for  breaking  and  entering  close.   It  appeared  that  deft's 
cow  was  in  a  pasture,  that  one,  Hezth,  in  getting  his  own  cow,  let  out 
deft's  and  drove  her  along  the  road  to  a  place  about  200  feet  from  plff's 
land,  whence  she  strayed  and  committed  the  trespass  complained  of. 
Contended  for  deft,  that  as  he  had  done  no  wrong  he  could  not  be  held 
liable  merely  on  account  of  ownership,  but  action  should  have  been 
against  Heath.   HELD,  that  owner  is  not  liable  when  his  cattle  are  driv- 
en on  another's  land  by  a  third  party  without  his  knowledge.   But  here, 
as  soon  as  Heath  abandoned  the  cow,  legal  possession  revested  in  deft. 
and  he  was  answerable  as  for  the  other  beasts  in  his  custody,  for  any 
trespass. 

Had  H.  driven  the  ccv  onto  deft's  land,  deft,  would  not  have  been 
liable,  but  as  soon  as  H.  left  the  cow,  she  was  restored  to  owner's 
possession.   This  latter  is  net  true  of  all  things,  but  is  of  cattle. 


127. 
This  latter  is  not  true  of  ali  things,  but  is  of  cattls. 

It  is  a  hard  case,  but  the  weght  of  authority  is  with  it.   Black- 
stone  seems  to  say  that  the  grounl  of  the  rule  is  negligence 
presumed  by  lavY. 

BROWN  V.  GIL?S,  p.  337,  i  Carrineton  &   Payne  118,.  1325. 

Aation  against  deft,  for  breaking  plff's  close  with  dogs  and  tra.np- 
lins  down  the  grass.   It  appeared  that  owner  was  walking  along  highway 
with  the  dog,  when  it  jumped  ever  into  plff's  field.   HRILD,  that  the 
dog  jumping  into  the  field  without  consent  of  owner  was  no  trespass. 

It  is  difficult  to  restrain  a  dog  or  a  cat  and  they  do  little  dania- 
age,  and  so  are  allowed  more  liberty  by  custoir;  than  other  animals  are. 
These  are  the  chief  reascns  for  not  holding  the  owner  liable  for  trespass 
45  Wis.  538,  is  contra  to  the  principal  case  and  in  accord  with  Doyle  v. 
Vance. 

If  the  dog  was  in  the  habit  of  committing  such  injury,'  and  ttie  ow- 
ner was  notified  of  that  habit,  he  would  be  liable  ss  much  as  for  the 
trespass  of  a  horse  or  cow.   Ames*  Oases  on  Torts,  p.  343.   Rish.  Non- 
Oon.  Law  1233. 

Plff.  afterwards  introduced  testimony  to  show  that  deft.,  on  another 
occasion  personally  entered  the  close  and  therefore  plff.  obtained  a 
verdict.   H'ilLD,  that  no  recovery  could  be  had  for  entry  by  the  dog  with- 
out incitement  by  master.   If  dog  accompanies  master  and  does  substan- 
tial damage,  plff.  could  probably  recover.   Case  is  authority  that  in 
H.ngland  owner  of  a  dog  was  nkt  liable  for  nominal  damages  by  dog's  en- 
try upon  pplff's  land. 

TILLR'TT  V.  WARD,  p.  387,  Q.B.,  18S2. 

Action  to  recover  for  damage  done  to  goods  in  plff's  shop  by  deft's 
ox  straying  from  the  highway.   He  was  being  driven  along  by  deft's  ser- 
vants and  no  negligence  was  proved,   HKLD,  that  where  a  man  has  cattle 
in  a  field  he  is  liable  absolutely  for  their  trespasses,  but  where  he  is 
driving  them  along  the  highway  he  is  not  responsible,  apart  from  negli- 
gence, for  damage  done  by  then  upon  the  highv/ay  or  upon  adjoining  prop- 
erty . 

Old  reason  given  for  strict  rule  of  common  Issv  to  cattle  was,  tres- 
pass by  a  m.an's  cattle  was  equivalent  to  a   trespass  by  himself.   But  bet- 
ter: It  is  to  cattle's  owner's  interest  to  have  his  cattle  feed  on 
other's  land;  if  they  stray,  they  generally  do  damage,  and  it  is  compar- 
atively easy  to  restrain  them;  they  seldom  get  cut  if  properly  taken  care 
of,  and  it  is  very  difficult  to  prove  negligence. 

Rule  here  is  correct.   '''asy  to  restrain  animals  when  in  pasture, 
but  m.ore  difficult  to  restrain  them  from  temporarily  straying  when  driv- 
en along  highway.   Greater  likelihood  of  doing  substantial  damage  whert 
animal  strays  from  owner's  land  to  neighbor's  of  its  onn  accord*  than 
where  it  is  driven  along  highway,  although  in  principal  case  the;  damege 
happened  to  be  great.  i 

Owner  of  certain  kind  of  animals  is  under  an  absolute  duty,iirre- 
spective  of  negligence,  tc  prevent  his  animals  from  straying  on  another's 


.1-  fv-  ^  • 

land,  except  when  slraying  from  the  highway  vihile   bein^  iawiuliy  arivsn 
thereon.  , While  they  are  so  lawfully  driven  on  highway,  he  is  only  bound 
to  take  car^  that  they  do  not  stray  and  is  liable  if  they  stray  through 
negligence.  \  31erk  &  Lindsell  on  Torts,  p.  3.   .As  to  analogy  in  Fletch- 
er V.  .R.  brea>l\ing  out  of.  cattle  is  more  corrimon,  but  breaking  away  of 
reservoir  wili\cause  iruch  more  damage;  one  reason  for  rule  in  o/^ttle 
cases  is  the  grWt  chance  for  false  testimony,  which  would  noy  be  so 
great  in  reservoir  case.   In  reservoir  case  owner  has  an  intirest  in 
his  reservoir  not  breaking  away,  but  in  cattle  cases  owner  hate  an  inter- 
est in  their  feeding  on  another's  land.   Also,  remedy  in  impounding;  it 
is  almost  valueless  if  negligence  has  to  be  proved.   In  U.S.  also  rule 
as  to  trespassing  cattle  has  been  abrogated. 

A'AGNFIR  V.  C1S3ELL.  p.  390,  Iowa,  1S56. 

Replevin  for  cattle.   Ceft.  answered  that  the  cattle  were  trespass- 
ing upon  his  unenclosed  land  and  he  distrained  them.   Demurrer.   HELD, 
that  at  comm.on  law  owner  of  land  could  destrain  any  cattle  found  tres- 
passing, and  did  not  have  to  fence  against  them.   But  only  so  much  of 
the  comm.on  law  has  been  adopted  in  this  state  as  is  applicable  to  the 
changed  conditions  of  life  here.   This  particular  principle  is  ill 
adapted  to  a  new  country.   Long  usage  to  the  contrary  and  a  series  of 
statutes  on  kindred  subjects  show  that  it  has  never  been  adopted.   CIrops 
are  universally  enclosed  and  cattle  allowed  to  run  at  large. 

Universal  understanding  of  the  community  had  great  weight.   Old 
common  law  rule  is  rejected  generally  throughout  the  southand  west. 
This  case  shoBS  that,  it  has  been  rejected  so  far  that  the  land  owner  can- 
not, impound. 

The  owner  of  cat.tle  is  not  liable  if  his  cattle  go  on  another's 
land  in  that  part  of  the  country,  but  he  has  no  right  to  have  his  cattle 
there  on  another's  land.   The  land  owner  can  keep  them  off  by  any  means 
he  chooses  short  of  injuring  the  cattle. 

UNION  FAOI!?IO  R.R.  v.  ROLLIN?.  p.  395,  Kansas,  1859. 

Court,  below  ruled  that  cattle  running  at  large  upon  the  unenclosed 
lands..of  another  are  not  trespassers;  that  owners  have  a  right,  to  aljow 
them  to  run  at  large  for  purposes  of  grazing.  This  is  wrong,  Comnon 
law  has  not  been  repealed  in  this  state.  Statutes  modify  it  somewhat 
as  to  damages  recoverable,  and  probably  make  it  contributory  negligerct 
to  fail  to  haoe  a  proper  fence.  But  while  they  allow  cattle  to  run  at 
large  upon  the  public  lands,  the  legislature  could  not  give  the  right  to 
go  on  private  property. 

This  case  holds  that  common  law  has  been  changed  so  far  that  if 
B's  land  is  enclosed  and  .A''s  cattle  go  there,  B  has  a  right  to  drive 
them  off  but  has  no  right  of  action.   As  to  change  in  common  law  see 
133  U.S.  320,  holding  that  as  to  public  land  of  U.S.  there  is  an  implied 
license  that  they  shall  be  free  to  the  use  of  the  people  while  they  -ere 
not  enclosed. 

ROSSSLL  V.  COTTON.,  p.  397,  Penn.,  1S5S. 

Trespass  to  recover  damages  occasioned  by  deft's  cattle  breaking 


129. 
into  piiT's  wheat  field  and  destroying  wheat.   Il  appeared  that  the 
cattle  at.  the  time  were  in  the  possession  oi'  one  Hill,  as  agister. 
HKLD,'  that  responsibility  for  trespass  of  catLle  is  not  a  question  of 
neelij^ence.   fcut.  it,  is  a  responsibility  which  rests,  not  upon  ownership, 
but  upon  posse^\^ion  and  use,  which  give  control.   If  owner  is  liable  in 
this  acase  at  all,  it  is  in  an  action  on  the  case,  founded  on  bailee's 
mismanagement. 

Test  here  is  'that  the  person  who  has  the  right  of  control  for  time 
being  is  the  person  liable  for  trespassing  cattle.   If  carried  out, 
would  hold  that  owner  was  not  liable  for  negligence  of  the  agister,  if 
owner  has  used  due  care  in  sslection  of  agister.   6^  Ills.  307;  70  Ills. 

BLAISDSLL  v.  STONfc,  p.  400,  N.H.,  1881. 

Trespass  qu.  cl.  for  damage  done  by  deft's  sheep  straying  into 
plff s  land  from  their  pasture.   Ceft.  had  let  his  farm  and  stock  to 
his  son,  and  latter  was  in  possession  and  control.   HELD,  that  plff.  is 
entitled  to  compensation.   By  the  common  law  agistaent  did  not  relieve 
owner  from  liability.   The  ancient  rule  that  action  may  be  brought 
against  either  owner  or  bailee  is  not  so  devoid  of  reason  as  to  be  cast 
aside. 

The  Penn.  case  says  the  damaged  party  can  only  sue  the  bailee,  not 
the  owner.   The  N.H.  case  holds  that  the  owner  is  liable  and  would  prob- 
ably also  hold  the  agister  liable.   There  are  cases  both  ways.   Of  ccur 
course  if  the  owner  trespasses  with  his  animals,  he  is  liable  for  dam- 
ages done  by  them. 

The  owner  of  certain  kinds  of  animals  is  under  s  duty  to  prevent 
them  from  straying  on  another's  land,  except  when  being  driven  lawfully 
along  the  highway,'  and  then  he  is  bound  to  up=  in:-  care  to  prevent  them 
going  on  and  to  get  them  off  speedily. 

Holmes  Oom.  Law  ]5S  says  that  animals  are  inclined  to  stray,  that 
it  IS  difficult  to  prove  negligence  of  the  owner,  and  the  safest  way  to 
ensure  care  is  to  throw  the  risk  on  the  owner.   That  the  difference  as 
to  cattle  driven  on  the  highway  is  that  there  it  is  easier  to  prove  neg- 
ligence and  harder  to  restrain  the  animals,  further  the  owner  is  bound 
to  get  them  back  at  once  and  so  there  is  less  likelihood  of  their  doing 
substantial  damage  than  when  straying  from  the  pasture.   In  the  latter 
case  they  may  not  be  discovered  for  some  time. 

If  a  man  finds  stray  cattle  on  his  land  he  may  destram  them,  ■^n'^ 
may  impound  them  for  damages.   !f  not  paid  he  can  sell  their. 

As  to  impounding  there  are  so  many  loopholes  in  the  process  that  it 
is  better  to  bring  trespass  unless  owner  of  cattle  is  utterly  insolvent. 
L.R.  189?,  1  Q.B.  808  where  land  owner  brought  trespass  while  he  still 
held  caitle  impounded;  held  that  he  must  elect  his  remedy.   15  Johns 
■??0  held  if  he  impounds  and  relinquishes  he  may  bring  action  of  trespass. 
In  IH  O.B.N. 3.  438  dictum  that  owner  may  be  held  liable  for  trespass  by 
poultry.   Orc.Jac.'lQO  looks  as  ii  owner  would  be  liable  for  trespass 
by  pigeons.   -'iS  Fa.  Ht.  146  as  if  hogs  could  trespass.   8  Barb.  580  as 


130. 
It  bees  -culd  not.  treit-pass;  Innes  on  Torts,  ?58,  9P  as  il"  they  could. 

^ne  rule  that  »   wan  is  not  bound  to  fence  but  is  bound  to  keep  his 
aniirais  off  the  land  ol"  others  applies  to  horses,  sheep,  cattle,  probabl 
to  bees,  1.8  "ow.   Fench  New  .-eries  d?8;  to  eeese  Crokss  Jases  4^0;  to 
ho^'s  4«  Penn.  -t.  147;  rot  to  bees.  18  Barber,  but  Innes  on  T.  contr'  . 

Aniir.8ls  vihich   are  now  the  subject  of  procerty  and  are  likel.v  to 
stray  and  rJc  dantb^e  are  included  witninn  the  rula.   Whether  the  Isw 
would  eo   farther  than  this  i;;  doubtful.  Tne  old   test  of  property  aiij 
ani.tala  Is  6?radualiy  bsins  abandoned  and  the  n^s  tpnt  ir^  net  •.'.■■'1  ft*t- 
tied. 

If  an  BnJiT.al  ot  a  class  not  likely  to  do  substsntial  dafT'sge  while 
trespasKiny.has,  in  fact.,  a  orcpfensity  to  do  such  damage, 
iircbabiy  absolutely  li«»ble  for  trespasses  by  that  particular  anifeal  af- 
t«r  ihe  owner  has  notice  of  the  propensit.v. 

:nn;als,  other  than  Trespass  on  Und. 

MAY  V.  pyw  .  ,  _  .1.  .  .,  1»46. 

Ceciaration  stated  that  deft,  wrcngfuliy  kept  a  certain  ifonkey, 
well  kncwine  thet  the  .TonKey  was  n.ischievous  -ini  ferocious,  and  acccus- 
toned  to  bits  Bsnkind;  whioJ:  said  monkey  did  bite  plff.;  for  resulting 
a=^.ffage  this  action  is  broui:ht.  Verdict  lor  pi:  .  uls  nisi.  H'*L',^ 
that  whoever  keeps  sn  sniirai  accustcnted  to  bite  .fankind,  with  knowledge 
of  its  propensities,  i?  bound  to  keep  it  secure  at  his  peril,  and  if  it 
does  a-M'see,   neElif.ence  is  presurr.ed  v?ithout  express  averitieri ;. . 

■■ecleration  sllesed  the  ferocious  disposition  of  the  Bnu.^x   an.- 
doit's  scienter.   Thers  was  no  «yer.T.ent,  of  neiglitJence,  but  the  court 
hell  that  it  «s(3s  neeli.eent  to  keep  such  an  aniisi  sfter  kncftins  its  sis- 
criievcus  nrccen^itiev.   One  7:ubL  ^t  hir  csril  keen  ir  "  i^^v-'-^^cti?   .nn- 
inai . 

in  10  Oushins  5ffj  s  declaration  containing  scienter  was  held  suf- 
ficient. 

siLBll^N  ,  im   no.,:  Ltd..  Q.^.,.  1?90* 

Action  to  recover  :;      tor  injuries  inflicted  on  plff.  by  an 
eiechsint,'  property  of  deu's.   Jury  found  th'jl  the  anittsl  v?ss  not  d^iin- 
£srous  to  a;an,  that  deft,  knsiv  it.  and  thst  plff.  a'id  not  brini?,  the?  at- 
tack on  hiir.self.   Verdict  for  plff.   H^-LD,  that  absence  of  knowledge  t 
owner  of  nantjerous  character  of  aninssi  »?ould  •sxcuss  if  the  aninial  be- 
longed to  the  class  of  aniffiais  harTls^^?,  by  nature,  or  shc^^n  by  experi- 
ence to  b9  harsRless  in  this  country.     ;  elephant  doss  not  bsioug  to 
this  cl;::S9,  but  is  one  of  those  animals  which  owner  ffiust  prevent  fro.f; 
icin.5^  in.juy  st  his  peril,    ci  that  this  particular  elephant  was  hsrir- 
i3ss  is  not  iraterial . 

Ooart  took  judicial  notice  of  f-ict  that  eisphants  ar     arcus. 
notwithstanding  verdiov  found  contra;  depended  upon  the  cust,ofr<3  of  the 
coMiunity  and  »oul  i  mx   be  foiicK-ad  in  Jndis.   If  deft,  keeps  an  anisiai 
f:s   is  bound  to  know  «':Ka  the  general  belief  ip  as  tc  the  danger  of  that 


131- 
animal  cr-  class  of  animals.   Jourt  here  thought  it  best  to  establish 
tierteral  rule  of  law  that  if  animals  as  a  olass  have  dangerous  propensi- 
ties;, owner  cannot  escape  oecause  he  thought  this  particular  animal  lid 
not  have  those  propensities.   In  38  Barb.  14,  Plff's  horse  injured  by 
fr/ioht  at  sight  of  an  elephant  on  highvlay;  deft,  not  liable.  Kveu   if 

aO  aniiral  belongs  to  s   dangerous  class^  owner  is  lisble  only  for  such 

'Of  aairages  ,  ^      .   ,       .f  y  >-'^<- 

class  as  animal  has  a  naLural  propensity  to  cause. 

BUXENDIN  V.  SHARP,  p.  ^^05,   Pksch.  3  Will.  HI.,  :..B.  ?   Sal- 

keld  632, 

'    'declaration  for  injuries  received  frow  deft's  bull  is  bad  if  it 

(does  not  abege  scienter. 

Oourt  holds  that  intrinsic  nature  of  a  bull  is  not  dangerous  to 
ni.in;  distinguishes  nature  of  bull  here  fron:  the  nature  given  to  elephant 
cv  court  in  preceding  case. 

VASON  V.  K!?ELiNS,  p.  407.  11  William  III.  1?.  ?/odern,  S3?.. 

Action  on  the  case.   Plff  declared  that  deft,  kept  a  certain  dog 
valde  ferocen^.  and  let  hin:  go  loose  unmuzzled,  so  that  plff.  was  bitten 
by  him.   Tt  was  contended  for  plff.  that  charging  it  to  be  canem  valde 
feroceni  supplied  the  want  of  scienter.   H'^TiD,  that  it  is  not  enough 
that  the  dog  was  ferocious,  unless  deft,  knew  it  to  be  so.   ■'  person 
shall  answer  for  all  damage  done  by  a  thing  in  which  he  has  valuable 
property,  but  as  to  a  thing,  like  s  dog,  in  which  he  has  no  v.iluable 
property,  he  shall  not  answer  unless  he  had  not'ce  of  dangerous  charac- 
ter, or  unless  the  thing  was  naturally  iiischievous  in  kind.   More,  deft. 
had  no  notice  and  a  dog  is  presumed  to  be  not  of  fierce  nature. 

Sven  if  the  injury  had  been  to  a  sheep,  the  declaration  would  have 
been  defective  without  the  scienter.   Scienter  must  be  alleged  to  recov- 
er for  injury  to  man  or  beast  by  a  dog.   Statutes  generally  reverse  the 
comm.on  law  on  the  subject  even  giving  double  damages  occasionally  and 
that  without  scienter  of  course.   Eish.  Non-Oon.  Law  sec.  1233,  1241, 
and  1239.   The  reason  for  that  is  probably  simply  the  difficulty  of 
proving  the  scienter.   But  the  Islegislatures  probably  differ  with  Lor J 
Holt  on  the  question  of  the  'dog's  nature.   If  scienter  is  proved,  neg- 
ligence is  not  an  element  in  ohe  case,  according  to  weight  of  authority. 

FLE  1N3  V.  CRR,  p.  41G,  quoted  in  note  2  '/acQueeri's^'cotch  Cas- 
es on  House  of  Lords.  25,- 1853. 

Lord  "ockburn.   In  Scotland,  if  a- man's  dog  worries  sheep,  the 
man  is  liable,  regardless  of  knoiiedge  of  a  dog's  vicious  propensities, 
or  principle  that  it  is  negligent  keeping  of  a  dangerous  instrument,  to 
leave  a  dog  so  that  he  can  get  at  sheep. 

Rl^.YMOLDS  V.  MlJSvSKY,  p.  411.  N.H.,  1886. 

Gase  for  injury  caused  to  plff.  by  deft's  horse  striking  him  with 
his  forward  feet,  while  standing  harnessed  and  unattended.   "he  deft. 
knew  the  vicious  character  of  the  horse  with  respect  to  kicKing,  but  con- 
tended that  he  was  not  liable  unless  he  knew  that  the  horse  had  fo-imerly 
struck  ^it^l^.  with  his  forward  feet  in  the  manner  in  which  >'r  struck  plff. 


132. 
HfULD,  tjiat  propensity  to  commit  the  precise  form  of  damage  need  not  have 
been  shown.   It  is  enough  if  owner  had  seen  or  heard  enough  to  convince 
a  man  of  ordinary  prudence  of  animal's  inclination  to  commit  the  class  of 
injuries  complained  of.   ]n  that  case,'  he  is  bound  at  his  peril  to  keep 
hin:  secure. 

What  is  proof  of  scienter?  /  Here  the  injury  was  by  the  fore  feet 
and  the  owner  knew  that  he  was  liable  to  injure  by  the  hind  feet.   That 
is  sufficiently  similar.   If  the  injury  had  been  by  biting,  the  proof 
would  probably  not  support  the  scienter.   "Substantially  similar"  is 
the  test.   You  do  not  have  to  show  the  actual  performance  before  of  the 
same  or  a  similar  injury,  but  only  a  propensity  to  do  substantially  sim- 
ilar injury.   It  need  not  be  of  precisely  the  same  character  as  the  ac- 
tual injury.   "Viciousness"  is  a  misleading  term.   Propensity  to  do 
such  harm  in  play  is  just  as  fatal. 

DSCKER  V.  2hnm,   p.  413,  Maine.  1357. 

Declaration  alleged  that  deft's  horse  broke  into  plff's  close  and 
kicked  plff's  horse  so  that  he  died,  damages  for  which  plff.  seeks  to 
recover.   Judge  srefused  to  charge  that  knowledge  by  deft,  that  his 
horse  was  vicious  was  essential  to  his  liability,   HF:LC,  that  this  was 
right.   If  domestic  animals  do  damage  when  rightfully  in  the  place 
where  they  do  it,  owner  is  not  liable  unless  he  knew  they  were  vicious. 
But  here  the  animal  is  wrongfully  in  a  certain  place;  as  here,  owner  is 
liable  for  damage  done,  knowledge  by  owner  that  he  was  vicious  is  net 
necessary.   Ground  of  the  action  is  that  the  animal  was  wrongfully  in 
the  place  where  the  damage  was  done. 

1'homas  on  Neg.,  529, ■•  531,  very  late  authorities  on  this  subject. 
Declaration  was  not  literally  in  Trespass  quare  clausum  fregit,  but  it 
does  allege  that  horse  was  on  plff's  land.   Often  said  that,  if  deft's 
animal  was  wrongfully,  as  against  the  olff.,  in  i.he  place  in  which,  etc, 
then  owner  is  liable,  not  merely  for  the  damage  done  to  the  land  but  for 
all  damages  although  they  are  not  such  as  could  be  expected  from  that  an- 
imal.  But  it  is  also  said  contra  tolhis,  that  even  if  animal  is  tres- 
passing on  land  and  does  certain  damage  apart  from  the  trespass,  owner 
is  not  liable,  even  then,  unless  damage  was  of  a  kind  he  had  reason  to 
suppose  animal  likely  to  do,   ^authorities  in  conflict  ^'-•'^-   irreconcila- 
ble. 

If  the  animal  is  lawfully  on  the  land,  scienter  must  be  proved. 
If  trespassing  en  the  land,  scienter  need  not,  according  to  some  author- 
ities be  proved. 

The  extended  liability  referred  to  above  is  only  Lc  the  owner  of 
the  land  and  any  one  who  can  be  identified  with  him. 

DOYLS  V.  VANCE,-  p.  416,  6  Victorian  Law  Reports.  Gases  at  Law, 
27,   1S30. 

Complaint,  that.  deft,  wilfully  kept  a  fierce  dog,  kncsin^  ils  nature 
and  that  the  dog  worried  and  kiUed  a  mare  of  plff's.   It  appeared  that 
the  dog  ran  on  plff's  land  after  the  mare,  and  that  she  tried  to  jump  a 
fence  but  fell  and  broke  her  neck.   HSLC,  that  proof  of  scienter  is  not 
necessary.   The  dog  was  a  trespasser,  and  owner  is  responsibl 


\: 


\ 


133. 

tor  any  damages  resulting  from  the  trespass.   Old  notion  that  dog  coul. 
not  trespass  is  not  well  founded;  there  is  no  difference  between  a  dog 
and  an  ox  in  this  respect. 
\       Held,  that  if  animal  wastrespassing  owner  is  liable  for  the  damages 
caused  by  his  trespass.   rihange  of  tiirie  and  place  produce  changes  in 
law.   43  '('fis.  536.   Doubtful  in  some  states  as  to  whether  owner  is 
liable  for  dog's  going  upon  land  of  another.   Very  little  authority  but 
tendency  to  hold  the  other  way.   Statutes  generally  cover  the  point. 
ITALLON  V.  C'BRK'N,  R.I..  ISSO. 

A 

'.     Trespass  to  recover  damages  for  injury  received  by  plff.,  a  yonng 
child,  in  consequnce  of  being  kicked  by  plff's  horse  which  was  astray  in 
the  street.   Judge  charged  that  deft,,  was  liable  even  if  he  did  not 
know-  horse  was  vicious  and  even  if  he  used  due  care.   HKLD,-  that  last 
part,  of  charge  was  wrong.  Deft,  is  not  liable  unless  he  was  negligent 
in  allowing  horse  to  escape,  or  in  pursuing  him  after  he  escaped..   Dif- 
fers from  the  cases  where  trespass  to  land  is  the  gist  of  the  action. 

Horse  was  not  a  trespasser  as  against  plff.   49  Conn.  113,  deft, 
turned  his  horse  loose  upon  the  highway;  deft,  liable  for  injury  to  child 

:0X  V.  PURp^T'"'^^.  V.   '1?^.  1-^  Comirion  Bench,  ■^'el'.  ^-ri^=^,  ^-^-7. 
1S63. 

There  a  horse  strays  on  the  highway  and  kicks  a  person,  owner  is 
not  liable  merely  because  he  was  negligent  in  allowing  horse  to  be  there. 
It  must  also  be  proved  that  owner  had  reason  to  expect  that  the  animal 
might  do  some  injury  of  that  sort,  for  it  was  contrary  to  the  ordinary 
habits  of  *»he  horses. 

It  did  not  appear  how  the  horse  got  there.   The  injury  he  did  was 
to  the  person. 

In  18  C.bIS.  722,  Lee  v.  Reilly,  deft's  horse  got  on  plff's  land 
and  injured  plff's  horse,  d,eft.  held  liable;  his  horse  was  trespassing 
as  against  plff.   Clerk  5-  Lindsell  345,  note  ''■  distingui sheds  these  cas- 
es on  ground  that  it  is  not  in  the  ordinary  nature  of  horses  to  kick  hu- 
man beings  although  it,  is  to  kick  other  horses. 

SUMMARY  -^^  ""^^^   ^BCTION.  ^ 

If  B's  horse  escapes  onto  ,A's  land  and  kicks  .A's  horse  and  child^ 
some  authorities  hold  rejecting  Decker  v.  3amm.cn,  that  B  is  liable  for 
the  injury  to  A's  horse,  it  being  natural  for  one  horse  to  kick  another, 
but  that  he  is  not  liable  for  injury  to  the  child  without  proof  of  scien- 
ter. 

The  owner  of  animals  is  absolutely  liable  for  injury  done  other 
than  trespass  to  land  if  the  animal  belongs  to  a  class  having  a  natural 
propensity  to  do  the  kind  of  damage  in  question;  or  if  the  particular  an- 
imal, though  belonging  to  a  class  not  naturally  so  inclined,  has  a  spec- 
ial propensity  to  do  this  particular  kind  of  damage,  and  the  owner  is 
aware  of  these  propensities.   In  these  two  cases,  negligence  need  not 
be  proved.   Some  authorities  hold  an  owner  liable  for  any  damage  done 
while  the  animal  is  trespassing  en  plff's  real  estate.   On  this  there  is 


l! 


134. 

a  contiicL  of  authority  especially  in  cases  where  the  dansage  is  of  a  kind 
which  that  class  of  animals  could  not  be  expected  to  do  and  the  owner  has 
no  knowledR^  of  the  propensity  to  do  such  damage. 

hether  an  animal  is  of  a  dangerous  class  or  not  is  a  question  for 
the  court.  In  38  Barbar,  the  owner  of  an  elephant  was  held  not  liable 
for  frightening  a  horse  on  the  highway. 

If  /the  animal  is  known  to  have  a  propensity  to  do  the  damage,  it  Is 
no  defence  that  the  owner  used  the  greatest  care  to  prevent,  an  escape. 
The  owner  is  liable  as  an  insurer  regardless  of  negligence.   But  deft, 
is  not'  liable  as  an  in  insurer  if  the  animal  is  liberated  by  vis  ir:a,1or  or 
by  the  tortious  act  of  a  third  party.   There  is  no  case  on  these  defen- 
ces and  the  authorities  differ,  but  the  above  is  probably  the  law. 
Beven  on  Neg.  UBS;  Innes  on  Torts  7-1,  104;  Glerk  ^  Lindsell  on  T.  852. 
Braniwell  in  Nichols  v.  !;iarsland. 

If  an  aniiriai  belongs  to  a  dangerous  class,  it  is  no  defence  that 
the  particular  animal  has  always  been  tractable  heretofore.   i'here 
scienter  is  necessary  and  proved  then  negligence  is  cut  of  the  question. 
As  to  aniir;als  not  dangerous  as  a  class,-  it  would  put  too  great  a  hard- 
ship on  agriculture  and  commerce  to  hold  deft,  liable  without  proof  of 
scienter. 

Decker  v.  3an;irion  probably  goes  to  an  extreme  and  perhaps  most  au- 
thorities hold  that  in  such  a  case  deft,  is  liable  for  such  damage  only 
as  may  reasonably  be  expected  from  the  animal. 

Cogs  stand  alone.   Bish.  Non-Con.  Law  1233.   Deft,  was  not  liable 
in  the  old  law  for  a  trespass  of  his  dog,  the  dog  not  being  regarded  as 
property.   The  weight  of  authority  is  siill  that  deft,  is  not  liable 
although  dogs  are  now  held  to  be  personal  property.   Put  the  owner  is 
liable  if  the  dog  is  sent  en  the  land  or  follows  the  master,  or  if  the 
owner  (deft.)  knows  of  a  special  propensity  in  his  doe  to  trespass  and 
do  any  special  damage. 

.At  common  law  the  owner  was  not  liable  for  damage  done  by  other 
acts  of  his  dog  than  trespass  without  proof  of  scienter,  but  this  is 
changed  now  owing  to  the  difficulty  of  proving  scienter.,-  and  the  grov/th 
of  a  feeling  that  it  is  the  nature  of  dogs  to  bite.   i^inglish  judges 
however  are  influenced  by  the  value  of  dogs  for  defence  of  property  and 
by  a  desire  to  have  them  for  hunting  and  sporting. 

CHAPTER  XI. 

DECEIT^" 
SECTION  I. 
Generally  —  Nature  of  Representation. 

ti^ob:..\   V.  H'RtfcMAN,  p.  4.25,  29  George  HI.  -3  Term  Reports  (Curn- 
ford  &   East.)  51. 

Action  in  the  nature  of  a  writ,  of  deceit.  eclaration  alleged 
that  deft.,  intending  to  deceive  and  defraud  piff.,  persuagfed  him  to 
deliver  goods  of  great  value  to  one  Falch  on  credit,  by  falsely  afeserting 


135. 
that  he  was  a  person  to  be  trusted;  that  plff.  delivered  the  goods  and 
suffered  great  damage,  as  Faich  was  not  a  responsible  party  as  deft. 
well  knew.   Verdict  for  plff.   Motion  in  arrest  that  deft,  had  no  in- 
terest in  the  rr.atter  and  was  not  guilty  of  collusion  with  Falch.   HELD, 
that  this  makes  no' difference,' as  loss  to  plff.  is  the  essence  of  the 
itiatter.   An  assertion  which  is  false  and  which  jnaker  knows  to  be  false 
and  makes  in  order  to  injure  another  is  actionable,  if  that  other  acts 
upon  it  and  is  injured  thereby. 

This  is  the  leading  case  on  the  subject  of  deceit.    declaration  i 
in  deceit  should  contain  six  allegations:  1,  deft,  iiiaae  a  representation; 
2,  it  was  false — false  is  here  used  frequently  to  indicate  simply  not 
true  in  point  of  fact;  3,  that  the  staten:ent  was  made  by  deft,  with  a 
knowledge  of  its  falsity;  4,  that  it  was  made  with  intent  to  induce  plff. 
to  act  upon  it;  5,  plff.  did  act  in  reliance  upon  it;  6,  plff.  was  dairi- 
aged  by  so  doing. 

The  declaration  need  net  allege  that  deft.,  was  or  expected  to  be 
personal lybenefited  by  the  deceit,  or  that  deft,  was  in  collusion  with 
the  person  who  received  the  cbenefit.   The  false  statement,  here  was  not 
for  the  benefit  of  deft,  but  it  injured  the  plff.   It  was  on  a  matter  of 
opinion  ana  the  deft,  lied  as  to  his  own  opinion.   Deft,  was  not  bound 
to  say  anything  at  all,  but  if  he  did  say  anything,  he  sbculd  have  done 
it  truthfully. 

The  action  was  now  in  fatt,  but  not  in  principle  at  that  tinie. 
There  was  no  privity  of  contract,  and  so  the  action  is  in  the  nature  of 
tort  and  not  contract,  .mi   therefore  no  consideration  was  necessary  to  be 
shown.   And  the  statute  of  frauds  had  no  application. 

Prof.  Sirdth  says  that  where  A  gets  goods  promising  to  pay  in  fu- 
ture but  not  intending  ever  to  pay,  deceit  ought  to  lie,  but  it  is  an 
open  question.   See  Pollock  442.   The  seller  can  at  all  events  rescind 
the  contract. 

In  Long  V.  ..ccafi.an,  p.  43?,  deft,  promisea  pin.   that  ii  he 
would  sell  a  horse  to  A,  that  he,  deft.,  would  pay  the  price.   H'^LD,  de- 
ceit did  not  lie.   Seeeextract  from  Pollock  p.  ''i4?  regarding  such  prom- 
issory statements. 

PJDGIN3T0N  v.  FITZMAURIO'«:,  p.  442..  Law  Reports,  29  Chancery  Div. 
459,  1S82. 

Action  against  directors  of  a  company  to  recover  a  sum  of  money  ad- 
vanced by  plff.  on  debentures  of  the  company,  on  the  ground  that  he  was 
induced  to  make  the  advances  by  fraudulent  misrepresentations  of  defts. 
Plff.,  a  shareholder,  received  a  prospectus  inviting  subscriptions. for 
debenture  bonds,  the  prospectus  stating  as  objects  of  the.  issug  of  de- 
bentures, certain  improvements  which  were  to  be  made  by  the  company. 
Plff.  took  debenture  bonds,  relying,,  as  one  inducement,  on  the  objects 
stated  in  prospectus.   At  the  trial  it  appeared  that  the  real  object  of 
defts.  was  to  pay  off  pressing  liabilities  of  the  company.   'Jcntended 
for  deft.s.  that  staiements  in  prospectus  were  not  statements  of  fact, 
but  m.ere  declarations  ofintention,  hence  there  was  no  actionable  deceit. 


136.  [ 
HCUD,.  that  statements  of  intention  is  a  statb\TsnL  ol  lact,  and  if  made 
deceitfully,  or  recklessly,  regardless  of  truth,  is  actionable,  if  it  con 
tributed  to  inducp  plff.  to  advance  his  money. 

Vrhe  defts.  represented  that  they  wanted  the  money  to  enlarge  the 
business.   In  tfact,  they  wanted  it  to  pay  debts.   Defts.  pleaded  that 
they  iftade  no  misrepresentation  of  existing  facts,  that  the  misrepresen- 
tation ^was  as  pG   the  state  of  their  minds,  that  they  only  misrepresented 
their  intention.   But  the  court  held  that  intention  (the  state  of  a 
man's  mind)  was  a  fact,,  ana  misstatement  of  intention  was  a  misrepresen- 
tation of  a  fact. 

25  Atl.  Rep.  61S  decided  thit  recision  only  could  be  had  in  such  a 
case,  but  upon  Lord  Bowen's  view  it  seems  as  if  plff.  could  have  there 
brought  deceit.   The  most  famous  sentence  in  this  case  is  that  of  Bcwen 
at  the  top  of  p.  445.   In  S4  N.'«.R.  deft,  made  a  falsi  statemetnaas  to 
his  opinion  and  was  held  liable  in  deceit. 

Bowen.L.J.  in  Smith  v.  Land  ^-c.  Corporation  says  on  p.  -'1^8, 
"If  the  facts  are  not  equally  known  to  both  sides,  then  a  statement  of 
opinion  by  the  one  who  knows  the  fact.s  best  involves  very  often  a  state- 
ment of  a  material  fact,  for  he  impliedly  states  that  he  knows  facts 
which  justify  his  opinion." 

SLCnON  11. 
Representation  not  True  in  Fact. 

KIDN?:Y  v.- STODDARD,  p.  446.  7  Metcalf,  ?52,  1843. 

Trespass  upon  the  case  for  an  alleged  fraudulent  representation  by 
deft,  as  to  the  credit  of  his  son  in  a  letter  in  which  he  said  that  his 
son's  contracts  would  unquestionably  be  punctually  attended  to.   On  the 
strength  of  this  letter  plff.  sold  the  son  goods.   It  turned  out,  that 
the  son  was  a  minor,  and  the  goods  were  never  paid  for.   Judge  charged 
that  intentional  concealment  of  a  material  fact  in  a  better  of  recommen- 
dation amounts  to  a  false  representation,  and  refused  to  charge  that  if 
deft,  gave  his  opinion  merely,  he  was  not  bound  to  communicate  any  facts. 
HELD,  that  charge  was  correct.   Fact  that  the  son  was  a  minor  was  very 
material.   Deft,  designedly  concealed  this  fact,  thereby  inducing  plf i . 
to  trust  the  son,  in  consequence  of  which  he  sustained  the  loss  complain- 
ed of. 

Deft,  honestly  believed  his  son  would  pay  his  debts  and  had  not 
said  anything  untrue,  but  court  instructed  jury  that  if  nmctive  of  con- 
cealment, was  that  if  he  did  net  irention  fact  of  non-age,  the  son  v/ould 
be  given  a  credit  which  he  would  otherwise  not  receive,'  he  was  liable. 
The  father  intended  the  plff.  tc  run  a  risk  which  he  would  net  otherwise 
have  assumed. 

P^'^K  v.  3URN5Y,  p.  450,  House  of  Lords,  1S78. 

Here  non-disclosure  of  material  facts  frorr-forms  no  ground  for  an 
action  for  misrepresentation.   There  must  be  some  active  mis-statement 
of  fact,  or  at  all  events,  such  a  partial  and  fragmentary  statem.ent  cf 
fact,  as  that  the  withholding  cf  that  which  is  not  stated  makes  tftat 


137. 
which  is  i^aled  absolutely  false. 

i^^'.^LL  ..  -/iNijALL,  p.  -!50,  Minn.  ,■  1884, 

.'iiile.a  purchaser,,  when  buying  aon  credit,,  is  not- bound  to  disclose 
the  facts  qf  his  financial  condition,  yet  if  he  is  questioned  and  answers 
he  is  bound.1  to  tell  the  whole  turth,  ana  not  give  en  evasive  or  mislead- 
ing answer,  \which,  although  literally  true,  is  partial,  containing  only 
t;alf  the  truth,  and  calculated  lc  convey  a  false  iirpression. 

In  the  i^rincipal  case  the  party  received  credit  on  saying  he  was 
v;orth  ^HSOO.-inot  ii;eni,ioninfe  that  he  owed  $2100.   This  was  such  a  par- 
tial statpmen^  that  it  was  calculated  to  deceive. 

The  statclinent  was  naturally  constured  to  mean  tha..  ol^;  i^ari-.y  i;.ita 
•:3300,  fr,ee  of;  siicuDibrance.   Pollock  Z   iid.,  556  says  "a  statement  may 
oe  untrue  though  no  part  oi  it  is  in  terms  untrue,  if  by  reason  of  niste- 
tial  fact?  being  (intentionally)  oniitted,  the  stateirent  as  a  whole  is 
fitted  to  deceive. 

SiOTlON  III. 
:}eft's  Belief  as  to  Truth  of  Fsepresentation. 
Um'M   V.  HARDING,  p.  451,  N.H.,  1853. 

jrtiapass  on  the  case.   Declaration  that  defts.  ,■  being  possessed  oi 
a  mare  affected  with  glanders,,  in  order  to  induce  plff.  to  buy  her, 
falsely  and  faaudulently  affirnied  to  oiff.  that  the  n-are  was  well  and 
sound,  whereupon  plff.  was  induced  to  take  the  n;are;  the  rrare  was  not 
well  and  sound,  as  deft.,  well  knew,  whereoy  plff.  suffered  dairage. 
Judge  charged  that  it  must  be  proved  that  defts.  knew  or  believed  or 
suspectpd  their  stgitements  to  be  false.   Hi<';Ln,  that  this  was  correct. 
In  assumpsit  on  the  warranty,  actual  falsity,'  without  knowledge  or  bad 
faith, ■  is  enough,  but  in  an  action  of  tort  for  deceit,  intention  to  de- 
fraud and  knowledge  that  staoetiients  were  feise  are  the  gist  of  the  action 

In  an  action  on  a  warranty,  plff.  need  not  prove  scienter,  but  in 
aeceit  he  must  prove  scienter.   iVarranty  is  defined  in  Anson  on  Con- 
tracts, Huffcutt's  F-d,  33S,  S72,  note:  .'grranty  is  a  promise  of  indem- 
nity against  a  failure  in  the  performance  of  a  term  in  the  contract  -  a 
promise  to  fr-ake  cotSipensation,  Ifiarkby,  3  lA.   sec.  89^.   Nowadays,  plff. 
can  .join  counts  for  warranty  and  deceit  in  one  action.   122  U.S.  575  is 
wrong. 

It  is  often  very  doubtful  at  the  time  whether  there  is  a  warranty 
Ci"  not.;  en  the  other  hand  it  is  often  hard  to  prove  deft's  knowledge, 
so  it  is  hard  to  tell  which  action  to  bring.   Counts  for  warranty 
and  deceit  should  therefore  be  joined  if  the  procedure  alJows  cl  it. 
Anson  on  Contracts,  1st  'ilng,  -.d.  295. 

In  deceit  it  is  sufficient  to  prove  either  that  deft,  knew  the 
statement  to  be  untrue  or  that,  he  had  no  honest  belief  in  it. 

PPEK  v.   -^Y.  p.  45S.  Chancery  Div.,  18S7.  Appeal  Cases. 1859. 

Action  against  directors  of  3  cer^^in  tramway  Co.,  claiming  dam- 
ages for  fraudulent  misrepresentationflf of  defts.  whereby  plff.  was  induc- 
ed to  take  shares.   The  alleged  iTiis,'»Epresentation  was  a  statement  in  a 


138. 
statement  in  a  prospectus  that  the  Co.  had  authority  Lo  use  steam  or 
other-  tiiechanical  power, ^  whereas  in  reality  they  had  this  authority  only 
on  conaition  that  the  Boara  ol  Trade  should  consent.   Judge  in  the  court 
below  held  that  as  he  believdd  delts.  thought  the  consent  of  Board  of 
Trade  was  certain  to  be  secured,  they  were  honest  in  issuing  the  prop 
Drospectus,  and  so  notliable.   This  was  reversed  in  Court  of  App.,  where 
it  was  held  that  a  falst  statement,  rnade  without  reasonable  ground  for 
.jelieving  it  true,  renders  one  liable.   In  the  House  of  Lords  this  de- 
cision was  reversed.   It  was  HfcLFJ,  that  without  proof  of  fraud  no  ac- 
tion of  deceit  is  maintainable.   Absence  of  reasonable  ground  for  be- 
lieving statement  true  is  not  necessarily  evidence  of  fraud. 
Fraud  is  proved  whein  it  is  shown  that  a  flase  representation  has  been 
m.ade.   (1)  Knowingly,  (2)  or  without  belief  in  its  truth,  or  (3)  reck- 
lessly, carelessly  whether  it  be  true  or  false;  in  other  words,-  to  pre- 
vent a  false  statement  being  fraudulent  there  ir.ust  always  be  an  honest 
belief  in  its  truth.   If  fraud  is  proved,  xotive  is  immaterial.   Ap- 
plying these  rules  to  the  finaing  of  tlie  judge  below,  it  is  clear  defts. 
are  not  liable. 

An  important  case.   5  Law  Quarterly  Rev,  421.   It  is  an  open 
question  whether  it  would  be  followed  in  this  country. 

Opinion  is  generally  against  the  House  of  Lords  as  to  the  facts. 
Cefts.  knew  that  their  statements  were  not  an  exact  truth,  the  prospec- 
tus stated  a  present  right  to  use  steam  powef,  but  they  hadn't  that 
right.   It  was  subject  to  two  permissions;  they  believed  they  would 
get  permission,  and  thought  that  was  the  same  thing.   They  never  got 
the  permission.   The  House  of  Lords  said  that  a  man  was  not  liable  if 
he  honestly  believed  what  he  said,  however  unreasonable  his  grounds  may 
have  been. 

Assuming  the  view  of  Sterling,-!,  that  defts.  stated  what  was  not 
true  in  fact,  but  stated  nothing  but,  which  they  believed  to  be  true, 
the  Court  of  Appeals  held,  that  they  must  have  reasonable  grounds  for 
belief  in  what  they  stated;  that  if  defts,  made  a  statement  not  true 
in  fact,  with  the  intention  to  have  others  act  upon  it,'  deft,  is  liable 
if  he  had  no  reasonable  ground  for  the  belief,  even  though  he  believed 
it  to  be  true. 

Some  of  the  defts,  must  have  kncv.-n  that  the  facts  st2t,ed  were  not 
true,  and  on  the  facts  they  could  not  have  honestly  believed  what  was 
in  the  prospectus.   The  H^use  of  Lords  is  right  in  law.   A  man  is  not 
liable  for  telling  a  statement  which  is  false  if  he 'honestly  believes 
it  to  be  true,  that  is,  not  liable  in  deceit.   If  he  makes  a  false 
statement  in  an  honest,  belief  of  its  truth  without  any  reasonable  ground 
owing  to  carelessness,  negligence  5:C.,  in  looking  at,  the  facts,  some 
writers  including  Pollock  say  that  he  ought  to  be  liable  in  an  action  on 
the  case  for  negligence,  andin  England  such  a  liability  is  created  by 
parliament.   But  the  point  is  not  settled  by  decision. 

Plff;.  could  introduce  evidence  that  there  was  no  reasonable  ground 
for  the  belief  siii.ply  to  show  that  deft,  did  not  believe  what  he  stated. 


139. 
iViiciaii&  ci   pdke  478. 

■Phe  general  opinion  of  the  profession  has  been  since  Peek  v.  Derry 
that  anJ^cLion  of  negligence  will  notlie  in  such  a  case.   Frof.  Smith 
thinks  thy-  taking  the  view  of  the  facts  that  the  House  of  Lords  took, 
that  the  d\cision  is  right,  because  the  oiff.  alleges  deceit  and  pt-cves 
negligence, vyvfeich  is  a  variance. 

Hersche\l's  three  classes  of  false  representation  can  all  be  put 
into  one,  thst  is,  \vherevsr^  Lhere  is  not  an  honest  beliei  in  the  truth 
of  the  stateiiient  th_er_e  i  s  £raud . 

CABOT  V.  OHRlSflP',  p."433.  Vermont,  1S89. 

Case  for 'false  warranty  in  the  sale  of  a  farm.   Declaration  that  tr 
the  deft.,  made  representations  as  to  the  number  of  a:jres  as  of  his  own 
knowledge,-  intending  to  induce  plfi,  to  believe,  and  inducing  plff .  to 
believe  that  the  farm  contained  at  least  130  acres.   The  farm  did  not 
contain  130  acres.   HELD,  that  a  party  who  is  awsre  that  hehas  only  an 
opinion  how  a  fact  is  and  represents  that  opinion  as  knowledge,  does  not 
believe  his  representation  to  be  true;  when  a  xan  says  he  knows  of  his 
own  knowledge  that  his  farm  contains  a  certain  number  of  acres,  the  fair 
inference  is  that  it  has  been  surveyed,  and  that  the  owner  knows  its  ex- 
tent through  the  survey, 

Clearly  right.   Plff.  joined  a   count  in  contract  with  a  count  in 
tort.   He  could  net  recover  en  a  contract  of  warranty  unless  he  had 
such  warranty  in  the  deed. 

There  is  a  difference  between  a  statement  as  to  the  size  of  a  pieve 
piece  of  land,  and  as  to  t.he  credit  of  a  person.   The  latter  is  always 
or  nearly  always  a  matter  of  opinion,   ''he  forTer  i?  susceptible  of  ac- 
tual knowledge. 

If  a  fraudulent  representation  is  material  and  relied  on,  the  par-1 
ty  deceived  is  entitled  to  recover  danagee,  even  though  the  jury  would  ' 
think  that  he  wouldhave  made  the  purchase  without  this  representation. 
What  the  party  would  have  done  if  the  fraudulent,  inducement  had  not  bee,r 
held  out  is  a  mere  speculative  inquiry  and  not  the  test  of  plff's  right 
to  recover. 

HAYCRAFT  V.  CRF;ASY,  p.  4S5,  :i  Last,  92,-  ISQl. 

Po  an  enquiry  concerning  the  credit  of  another  recommended  by  deft, 
to  deal  with  the  plff.  s  representation  was  made  by  the  deft,  that  the 
party  .Tiight  be  safely  credited  to  any  amount,  end  that  he  spoke  from  his 
own  knowledge  and  not  from  heresay.   HFl.D,  this  will  not  sustain  action 
in  case  for  deceit  where  damage  results  from  default  of  trusted  party 
who  turns  cut  to  be  a  person  of  no  credit,  if  it.  appear  that  such  rep- 
resentation was  m.ade  by  deft.  )bona  fide  and  with  a  belief  of  the  truth 
of  it;  for  the  foundation  of  the  action  is  fraud  and  deceit  in  deft. 
and  damage  to  plf .  by  means  thereof.   Taking  the  assertion  of  knowledge 
secundam  subjectam  m^ateriam,^  biz.  ,•  the  credit  of  another,  it  meant  only 
a  strong  belief  founded  on  what  appeared  to  the  deft,  to  be  reasonable 
and  certain  grounds. 

Pollock  on  ■^.  ■• 


'■  rr  *~* 


^^,  n.s.   Aords  must  be  ccnstu 


I  - 


140. 
' ovia   Biust  be  construed  in  view  of  the  subject  rriatter.   nist.tnfeuished 
trOBi  pre'jsding  case  by  subject  rriatter.   Tn  first  case,  subject  matter 
wa;-  a  thing  which  couH  be  sot  at  with  accuracy,  and  is  usually  knkwn  i 
oivniir,  but  in  principal  case,  it  is  ainiost  impossible  to  arrive  at  sbsc- 
iut«  accuracy,  and  it  is  a  rratter  concernin?^  v-hich  the  ordinary  lirpres- 
sjon  is  that  dett.  is  giving  only  his  belief,  and  that  whit  deft,  said  as 
tc  her  finsncial  responsibility  «as  siinpiy  an  expression  of  opinion. 

!;ai  was  the  meaning  of  the  staten^ent^  is  the  question;  It  is  9  jnatter 
of  cof'siruoticn  of  deft's  ststeirent.  Frof,  Srriith  does  net  say  that  he 
agrees  with  case  on  the  facts,  in  view  cl  deft's  ststsir,snt  that  she  hsd 
inherited  nicney.  '  N.'JJ  .  .  "0  rhUhl  not  be  fcllcwed.  41  R.  ,  .  ■ 
irstler  of  coiiircn  knovdedf  e  tnat  directors  have  very  little  kncwledjrie  of 
the  business  of  .vhich  they  i.re  officers, 

'istincticn  betwrjen  intent  and  fnotiv  .    here  detl.  intended  to 
kill,  snd  woundea  and  falirisd,  and  was  in5i;;Lia  for  ?^ounding  and  niaiirdnr . 
and  pleaded  i"'-^'  ^is  intent  ita;?:  to  kill,  i-''"'or  intent  was  to  kill  an 
pri;rrv  ■-)rd   ...    '^^e  intent  was  to  nmn.  lephens  His.  of  Crin;,  [.s.v 

cl'   .  ill.  il  .    3rnin.f=  ssainst  two  coinson  fallacies,  via.,  the  con- 
fusion betsfeen  luotive  3nd  intentioa,  and  the  tendency  tc  deny  an  i  irie- 
diate  intention  bsceuss  of  the  existence,  resl  or  supposed,,  of  soitie  ul- 
terior intentic  .         ;  h  to  escepe  is  Ibe  ictjvs;  stabbing  police- 
!i.&n  is  the  intention.   1  i^ustin  on  Jurisprudence,     .  ,  "  . 

■nCN  v. 
:3efendsnt*s  Intent  thai  Piaintiff  ?ihould  sot  on  the  Representation. 

Cass  Lor  a^eceit.   Heits.     false  stateuients  st-out  the  honesty 
of  a  certain  person,-  thereby  injucin^  piff.  tc  eniplcy  hiui.   He  errbszzled 
plff's  funds.   Hence  this  action.   ''iry  charged  thai  defts.  were  lia^- 
ble  if  they  knowingly  ir-.  '  "  ■         lationa,  likely  to  occasion 
loss  to  plff.,  int.sndinfc  i,uwi,     wtctut  iheoDselves.   Jury  founa  ;_ 
pit'f.,  but  added  that  defts,      iiity  of  no  actual  fraud,  but  only  c 
fraud  in  law.   Hence  it  was  ;i_ ._  \.q  enter  verdict  for  -f"*''".  ""  ?rour; 
that  gist  of  action  for  deceit  is   intent  to  defrsu"  plft .      ih^i 
jury  sieant  that  there  was  no  expectation  of  personal  ;^2in.   'hie,  io   nc. 
necessary.   It  is  fraud  in  ia*  if  a  part^  arakes  representat.icRs  he 
knows  to  be  false,         ensues,  though  his  tnotives  may  not,  have 
been  'o»d^ 

ad  no  irauduient  intent.,  they  seant  Ir     had 
nci.  ujii;  a,Q;.iyi.  zi  .i^iLish   gain  tc  hiff;seif.   Absence  of  that,  scii., 
selfish  ffctive  does  not  prcv  :^-  -Jction  being  naintainable.   It  ii,   -ui- 
licient  that  deft.,  lade  the;  .^^..    .:...:•:-!  ;,-n  that  sco^e  one  of  the  public 
should  act  on  It..   If  he  did  nc.  .......   that  any  of  the  public  would 

act  on  it,  but  ought  to  have  so  supposed,  as  an  ^verape  reasonable  man, 
he  would  probably  be  liable, 

Phe  representation  sTUst.  be  aention  that  piff.  c; 

the  class  to  ishich  plff.  belong?  .vouid  act  c  another 

sialsnient  of  the  saire  rule.  liable  of  course,  as  before 


141. 

said,  ir  an  average  reasonable  ii;an  would  have  i'oreseen  that  the  statement 
would  be  acted  upon.   This  latter  test  is  probably  the  ture  one,  al- 
though according  to  Peek  v.  Derry,  t^e  test  is,  not  the  average  reasona- 
ble man,  in  deciding  ^hether  deft.  I^onestly  believed  thestatement,  but 
whether  deft,  honestly  believed  in  it  himself. 

POLHILL  V.  '.^LTIIR.  p,  495,  8  Barnsv;all  5:  Adolphus,  114,  1532. 

Action  for  deceit:   Declaration  alleged  that  deft,  falsely  and 
fraudulently  pretended  that  he  had  authority  of  drawee  of  a  certain  bill 
of  exchange  to  accept  it,  whereby  plff.,  relying  on  the  pretended  accep- 
tance, received  the  bill  to  his  loss.   It  appeared  that  deft,  acted  in 
the  belief  that  the  acceptance  would  sanctioned.   Jury  found  that  he 
was  guilty  of  no  fraud.   Verdict  for  deft.   Motion  to  enter  verdict  for 
plff.   HRLC,  that  to  maintain  action  for  deceit,  it  is  not  necessary 
that  deft,  should  have  intended  to  benefit  himself  or  injure  p)Jff.   It 
is  enough  if  he  made  a  statement  which  he  knew  to  be  untrue,  and  which 
was  intended  by  him  tc  induce  another  to  act  en  the  faitji  of  it.,  in  such 
a  way  that  he  may  incur  damage,  and  damage  is  actually  incurred.   Rule 
absolute. 

Deft,  ral  not  wrong  motive.   but  he  made  a  false  representation 
inLending  purchaser  to  rely  upon  it.   1  5ish.  uV.   L.  7  Ed.,  s.  241. 
?   Bish.  59B.   6  L.Q.R.  74. 

In  order  tc  prove  the  intent  necessary  tc  n:air.t3in  an  action  for 
deceit,  it  is  not  necessary  that  there  be  any  motive  of  personal  gain, 
tc  deft,  or  to  any  one  else.   It  is  only  necessary  that  deft.,  intendeu 
plff.  or  the  class  tc  which  plff.  belonged  to  rely  upon  his  statement, 
or  that  he  ought  to  have  foreseen,  as  a  reasonable  man,  that  plff.  would 
rely  on  il. 

LANGRIDGft;.  v.  LRVY,  p.  494,.  2  Meeson  &   'A'elsby ,•  519,  1837. 

3ase.   Ceclaration  stated  that  I.,   the  father  of  the  plff.,  bar- 
gained with  the  deft,  to  buy  of  him  a  gun,  for  the  use  of  himself  and 
his  sens,  and  the  deft,  then  by  falsely  and  fraudently  warranting  the 
gun  to  have  been  made  by  N.,  and  to  be  a  good,  safe  i:nd  secure  gun,  then 
sold  the  gun  to  L.,  for  the  use  of  himself  and  sons;  whereas  in  truth  and 
in  fact  the  deft,  was  gulty  of  a  breach  of  duty  and  of  willful  deceit, 
negligence,  etc.,  in  that  gun  was  not  made  by  N..;  was  not  safe,  etc., 
gun,  but  on  the  contrary  was  made  by  an  inferior  maker.  -  It  was  unsafe; 
of  all  which  deft,  at  time  of  such  warranty  and  sale  had  notice: — Flff. 
confiding  in  warranty  used  gun  as  he  otherwise  would  not  have  dene —  it 
burst  and  plff.  lost  the  use  of  his  hand.   HSLD,  (after  verdict  for 
plff.)  action  was  maintainable. 

Oase  seems  to  lay  down  that  one  who  sells  an  article  with  a  knowing- 
ly false  representation  as  tc  its  fitness  for  use  by  the  purchaser  or 
those  to  whom  the  latter  may  communicate  the  representation,  isiiable  for 
injuries  resulting  from  such  use.   Here  the  m;ctive  was  tc  effect  a  sals; 
the  intent  was  that  the  plff.  and  those  for  whom  he  said  he  bought  the 
gun  should  act  on  the  faith  of  the  deft's  representations;   They  did 

so  act.  one  of  them  tc  hio  ^ 


142. 

Decision  somewhat  like  George  v.  Skiving ton,  ante;  court  decided 
on  the  ground  that  the  father  had  named  the  son  as  a  user  at  the  time  of 
the  purchase.   VCourt  held  that  if  the  person  injured  is  nan;ed  at  the 
tine  of  the  purchase,' deft,  is  liable  to  him. 

BODFORO  V.  BAGSHAW,  p.  501,  4  Hurlstcne  5-  Norman,  538, ■  1859. 

Case  for  deceit.   Deft,  was  director  in  a  mining  company.   By  fal 
falsely  representing  that  the  subscription  list  was  full  and  2/8  of  the 
scrip  had  been  paid  in,  he  induced  the  Committee  of  the  London  Stock  Ex- 
change to  insert  the  company  on  the  official  list,  a  thing  which  was  on- 
ly done  when  the  above  conditions  were  complied  with.   Plff.,  seeing 
the  mining  company  in  the  list  and  knowing  the  rules,  was  induced  to 
buy  100  shares.   They  proved  worthless.   Hence  this  action.   Objected 
for  deft,  that  as  the  representation  was  not  made  by  deft,  to  plff.  him- 
self, it  was  not  a  ground  of  action.   Verdict  for  plff.   Rule  nisi. 
HPJLD,  that  direct  communication  to  plff.  was  not  necessary,  if  plff.  was 
one  of  the  persons  to  whom  deft,  contemplated  that  the  representation 
should  be  made,  or  d  person  whom  deft,  ought  to  have  been  aware  he  might 
injure.   In  this  case  all  persons  buying  shares  on  the  Stock  lixchange 
must  be  considered  as  persons  to  whom  it  was  contemplated  that  the  rep- 
resentation would  be  made. 

Flff.  was  one  of  the  persons  whom  the  deft,  ought  to  have  contem- 
plated as  liable  to  act  on  the  representation.   Ordinarily  speaking 
there  cannot,  be  a  duty  toward  all  the  world,  out  there  can  be  a  duty 
towards  a  very  large  class.   Representation  was  made  to  the  class  of 
persons  to  which  plff.  belonged  -  persons  who  knew  the  rules  of  the 
Stock  Exchange.   Pollock  on  ^raud  in  British  India  58.  App.  of  Pollock 
on  f.,   W2F:d.,  555. 

?^e   doctrine  of  this  case  is  limitea  veyy  much  by  Peek  v.  Gurney 
and  Hunnewsll  v.  Duxbury,  but  Prof.  Smith  thinks  the  general  statement 
of  the  rule  in  the  principal  case  is  correct  and  disagrees  with  those 
two  cases. 

It  is  well  settled  that  plff.  can  recover  if  he  relied  mainly 
on  the  representation,  andin  this  country  he  can  recover  where  the  rep- 
resentation was  one  among  several  other  things  upon  which  he  relied. 
The  only  dispute  anywhere  is  as  to  how  far  reliance  must  have  been  put 
upon  the  representation  and  how  much  on  other  things.   This  -general 
subject  is  taken  up  in  sec.  5  of  Smith's  Oases,  p.  511. 
PEEK  S:  3WMY,   p.  50^-,  House  of  Lords,  1873. 

■■  prospectus  for  an  inteded  co.  was  prepared  by  the  i.i.o.jcuL,orb 
(the  directors  of  the  company)  and  issued  by  their;  to  the  public;  it  con- 
tained misrepresentations  of  facts  known  to  those  who  issued  it  and  it 
also  concealed  the  existence  of  a  deed  which  was  material  to  be  known, 
and  which,  if  known,  would  in  all  probability  have  prevented  the  forma- 
tion of  the  ccnpany.   Being  addressed  to  the  whole  public,  any  one 
might  take  up  the  prospectus  and  read  its  representations  and  be  induced 
thereby  to  apply  for  an  allotment  of  shares.   H?LO,  that  when  the  al- 
lotment was  completed,  the  office  of  the  prospectus  was  exhausted  and 


1" 

¥3,.  ■ 
that  pltf.,  a  person  who,J;ad  not,  becoms  an  allottee  but  vyas  only  a 
subsc     ourchaser  of  shares  in  the  nsarket  was  not  so  connected  with 
the  prospectus  as  l^p  render  those,  who  had  issued  it.. liable  to  in^e.ffinify 
hiw  against  the  losse^f  .which  he  had  suffered  in  consequence  gf  His  pur- 
chase. 

!-iQi-u^iii£;nc;s'.,sU3t,eaie.nv,  uau,  ino  cpn,oni  oi  page  cJc  inaL  tne  prospec- 
t,,.5>  .uad.done  its  work  :[.,§  .vecjy  doubU'ui,   It,  is  a  question  of-  fact  v^he:  - 
er.^it  had  or  not--  /.  The  case  is  criticized  in  Innss  on  T.  54;,  55,'  note. 
It  h.'is  beeri  held,  that  the  effect  of  a  prospectus  still  siirv1v=?^  in  sue: 
a  -.   .  '^.ndrews  .  .  73  Law  Pifi.es,  n.s.72c. 

^  .       have. asked  to  have  the  jury  find  specially  whether  the 
prospectiis  was  part  of  the  general  fraud  which  caused  plf£.  to  take  tfte 
share  ,  ■  tlier'  the  cl^ft- ,  should  not  have  contemplated  thet  niQre  than 
the  original  allottees  would  act  on  the  prospectus.   "l  .will  usually 
be  found  th^t  the  lat-tec  is  t.he  case.   If,  the  jury  icund'  that  p|ff.  was 
one  of,  the  '    'Vhoiri  the  defts.  ou?>ht  to  have  contemplated,  as  likely 
tc  --i->"      ospectus,  the  case  ought  to  be  decl:^'^'^'  '"'  .--ti-.-r-  way, 

[.[,  v,'DUXBQBY,'p;  50^,  ■--^.-  1^?T. 

.  _  r  -  of  a.  foreign  ccrccr  artifidite 're-' 

quired." by^St.  o\   13S^,  Z.         ,         .     .  ■  t>e  fi^       the  coiririssloner 
of  corporations  in  order  that,  the^corporati;      -   .siness  in 
and  file    .      .      it.'on  file  and  was  induced  by'misstatenient. 
contains  the  promissory  notes  of  the  corporation,  which 

proved  to  be  wort/iiess,   -  •  ,  an  action  of  deceit,  cannot  be  iiaintaine 
against  the  officers  of,,  tjie  corporatic:  . 

'■"'"  ity  of  court  probably  thoufeni  i::iic  jury  cGcuia  nave  csen  askea 
/.:.ou;io*,  i.>if.  was  one  of  a  cI  ■  ■-  'Ikely  to  be  ipjure:^  "'■'■  *^-  ^-Ir^  -^it- 
tificf'-"!''  Kent,'  ^pntm,,  Rol.i-.  .; .  Fol._  on  T. /Ist,  \. .  ►-,..  -  •  --  •■• 
?S7.    ....  need  not  intsni'that  plff,  should  rely  on  hi~  false  repre- 
sentation; sufticient  ]     :u.Pht  to,  ha.ye  known  tWt  pi    .aid  rely"  en 
it;  doubtful  whether  deft^  .    aid  nbi'liave  conteir:pl3ted  that  plff. 
mieht  rely  on  this.  . 

Here  the  majority  of  .t,he  cpurt  apparently  held  that  the  certificate 
was  not  filed  with  intent  to  induce  people  to  act  on  the  faith  of  it. 
The  court  thought  that  t|ir   '  ^t  of  filing  the  certificate  being  dif- 
ferent here  from  Bedford  v.  -L^-shaw,  made  a   difference.   Probably 
the  object  was  to  satisfy  the  statute.,  but,,  the  question  of  left's  lia-  " 
bility  turns  rather  on  wh&ther  deft.,  ought  not  to  hav^  -or' --"ol-i ----■  tr-- 
the  class  to  ivhich  plff.  belcnped  nii?ht  rely  unon  ii. 

iecticr,  ■.  IS  oniittea. 

:TI0N  VI  . 

Whether  plaintiff  is  bar r^"'  by' failing  to  use  ths  ''p.f>.n^   pt  '-^v   -  - 
mahd  to' detect  the  ^>^lsehood. 

'2jh:.-'iLh  V.   ?^ujv:,i,p.   zc'( ,   :yijLiibOuri,    IStv,.  ... 
..-un  to  "eccver  damag-es  for  false  representations.        c^.   ±1.- 


■  ^?!  Jon  8fiw  Je^laeii  art  J  nc 

'i  Ji  b9U23i  csri  oriw  i  Qi  a&  ai  :  iq  ariJ 

;38noo  ni  bsial'iiis  b£.  --tnw  esaaoi  art  J  oanisae  .'nid 

.936flC 

,  'lo  moJJod  9t1J  J6J  JnsniaJfiJa   'asnaiflC  bic 
iJasup  6  8i  Jl      .luiJduofc  Y.^9V  ai  iJiow  3Ji  anoc  JDfi;i 

■0  esnni  ni  bssidiJiTO  si  seeo  sri '       .  .^on  io  fcsri  Jx   is 
,3  iiiJe  auJosqaoiq  fi  lo  JosTie  erij  ' ' "'  :^'::'''  eM  JT 

een  eo/Joaqsoiq 

J9d4  ,3sie[l2 

ao  Jos  ciuow  sssJJoj  -ig  srfJ 

.  ja&o  9ri.J  ai  i-sJJei  bnuc'i  sd 

.   J'isb  9(1  J  iiioriw  aae^o  srlJ  lo  sno 

Jo  srio  aa  oj  Jnstio  saeo  9(1  J  .auJosqaoac  o  y,191  oJ 

"    ■    J    .:Ji;.   -^-i.i-   i.'  ^J   B    .098    <""'''    . '"    . ''-^C   'io    .JH  yd   v-iij.ijp 

-.'.-liiaud  Ob  ysni  noiJeaoqioo  9(1J  -j^,..   ^..  .^  .li  anoxJs'ioqioc  lo 

•'Mill  Y.d  becubni  3£h  bns  aLi'l  no  Ji  bnuol  .1119       .ji  b9iil  fcne 

oqioc  3(iJ  lo  :=;eton  y^oaaiinca  edJ  9?lsj  oJ  nieaafiJ  bsnieJ,:  . 

,  Jonneo  .•  fioiJoa  n;    ,  .  rfi  9d  oJ  b9V0'iq 

.noijfi-ioqioo  sri  J  lo  2*:.  .  sri  J  JanisSB 

efl  bio  uf.  JBriJ  JrfauoriJ  YId6do^q  J^uc  ii'ioni'-^ 

.J  ylejiil  386lo  6  lo  sno  asw  .TUq  asriJs'ilw 
.         .    '  esmlort  ,,!ii(iior  .sJsoiliJ 

;on  I;. 

>.  iiilJduob  ;,Ji 
'   no  yLai  Jfi^i'Ti 
■/fJr!'  .   jauoc  .'.J  S'i9H 

art    SOU  ^f}  ' 

;nsi9l 

sriJ  YlsiJsa  oJ  gfiw  Jo9[,qc  srlJ 

vsn  oJ  Jon  iSiUsrl  J  J  yJilid 

..;:  iolsd   .  <cim<  Io  srlJ 


)r,3aJ.  ".^Jdr  oj  Dnsm 


144. 

duced  plff,.   \,o  accept  certain  shares  in  exchange  fcr  mnu,  u.v  liaisely 
rr-rr->p.nt,ing  theiTi  to  be  much  more  vaiu^.ble  than  they  were.       Jud^e  i 

,     •"'.fit  ir  plft.b;^? /d.ilisant . inquiry  might  have  ascertflinp-i  the        '' 
truth  0  ity  .pt  V)ie- ^lileaad  representation,   *nd  f3ile'r'''tL  :?uch     j 

invest!  ,     aeflilie  txa/i not'  recover.       H'  .  I 

v'„-n  ivfiere  t!\^  means;  of 'kjiowledge,  are- 'equally  i .. . , 

2  man  f\as  a  r'i^^ghUip  .r«Jy  on  a  positive  represeni^aticn  of  fact  in  pvery 
case,  exce        '  :;re-  a§-!inBt«teme.nts  of  va'ltie  of  Opinion,  the  representa- 
tion y;as  not.  calculated  to  put  hirri  off  his  .  ■  where,  as  here, 
Lh£  iieansrof' knowl^dpe^Sre  not  equally  ave"  '    cartis:  , 
objection  Ic^  ■■^  .-..^f -i^r  t^at  par*"  '-'•■^tv  -^  ,..1..-   , 

be  ellowea. 

Plff .: owed '-po^d'jtv  to  deft,  t?  1 
both. sides,.   Qontr  ,     Mass.. 

OrdinaRi,,iy -it 'is  no  defence  to  action  of  d^'isei: 
Lh:t     .  could  have  found  cut  that  he  was  liein^,  by  ri'aking  further 
inqtuirieiS-   Ogntx-ibutory  negligence  is  no 'defence  : 
tsntional  injury,.,   Plff's  failure  to  make '^n^diries  should  te'  no  de- 
fa  nc  .   ''e  owed  defti..!  no  duty  to  lock  up  his-  sf-         .    ~ut 
Lns  irulA.   Oeft's  not   wTas  in  tsntional,  was  int-:  :n, 

■jnd   when  acted  on  it  wa?  no  dsfeBce-,:  that  the  resuu  ''.lii-j;:  ne  ini^ndo' , 
could  have  been  prevented  by  foresight. 

ii  7'snv  r-^?"r  '-c--^v?r  hnv-^  '--en  decided  on  th^  'ground  that  plff.  W2^ 
foolish  fit,  but  in  tri:ny  of  thetF.'  the  nature  cf  the 

repr-c    ..ion  "was  such  that  vendees  senerally  d$1'not^ct'"c 
cesentations. 

Frof.  Smith  says  representations  as  to  valu         ortces,  6f 
law,  ought  to  be  actionable,  but  point  is:  in  discat  .    l.  ought  "to -T;. 
3re  one  stands  Qn  a  better  footing  t*ia  the  ot'ljsp , 5o -too , 
i3  LP  rspcescntation  cone  '    'ality. 


section  1 . 
Publication. 

action  fcr  publication,  ............  ■.,, 

aeft.  to'  plff.  ccr:t?1;nir5?  the  libel.  ihird 

pariy,  foiled  ut, 

any'  oth^ef" 'peT''feo'n  to  r--     ,  ,  _ 

WOUl  GUbliCr; 

breach  of   t 


suiiiciono,  niiL  ns  oe  into;  .3  or  liSa: 

_  _  4-  -  ,  ,  -:   i   1       1   i  ^  .      r   U  „  ...  „  , .  „  4 


.r  J 


rJrrSvt 


JO    ,jj..    ... tiOi    ,.\^Jai;A 


vJiniij- 


( 


3n 


1.4  5'. 

?N^'...   - .   .    ,  ...  57,  New  York,  ^  -  ■'. 
Miction  on  Itie  pasejj^jijtf- :>ltibal,  conW^an-^     .      senXbydefi. 
to  3..:.   .  Jlore  sending  it,' deft,  read  it  to  9' person  in  his  bffi'&e 
in  the  presence  of  his  clerk.  M'      .  ..ua,t,  thi^  was  sufficient  publica- 
lioh  to  sustain  the  aotion. 

If  it  is  connpunicated  at  eny  time  to  a  third  person,  it  is  a  publi- 
cation. '  '  • 

vl-v:.:,  p.-389,'lJi&iPflU£,  1S17. 

ntained  in-a  letter  direoted  to  piff.   /■  oierk, 

as  w.,,  :i.,  ^„...^„,  ,....  th^^letter^  it  not  being  nrarksd, "private,"   He 

t-^t.ifipi  f;h^t."he  believed-deft.  knew  such  was  his  custom. whether  deft. 

:-:'jf !'i(^ie-ht 'evidence' for  the  ,1urv  to  considep- whether 

aeU.   .,      ntef'd:     tt^^'^'tb'obWsi'^o  the- han-      thi-rd'.  pspsonr, 

which  won:        '      i. 

not  intended  that-  a  third 

paci  ■  oielhat  a-ny  one  but  the  jjarty  ••ad- 

dressed wpul  .  orobablh  tioi       '  .   "fje  ocinion  niigh:. 

have  besA.  made  str:    .   Tt  i'snot  trcct-^ii-.v  iiic.L   n e "should -in tShd 

gno''   •'-  V~^-'^  i^;  ,     :-"^'icrient  that  it  W  prbba^ble-^iia^-  ■>  th 


.) 


thi. 


1^ 


■*—         -   '  •     ".;  -'^  :     '   "/         '     -■-■—>   ■>-■"■■•  .% 

:v"  f^;..  j-j.p-j^r  r;.^  thst  DPOof  of  publfoation  H§ -^essentlal-,  M 

IL   :      '  :oken  lfi'''a 'pdWrd  plae^,  tMy  ffliS^t-' 

hive  been  oken  -  n^  ihdefstodd  bf'a^thipd  person, 

^'^dferfe  :^  reputation 'in 

on  pf"Ot^  i    ,    ::n/l  no;  iff^s  own-sstimafeion.    -No-ao- 

Lic  3  thtr  on  present  is-^stone  deaf  or  does 'ridt'*understand 

th:-  letter 'r^rtiains-unseaied-ohtf 5  it-'Peaches  a(SdPessee 

it  lo  not  ^iLCuna.  lor  a  civil  action  for  defair.atioR.'     Oefamation  must 
be'SornriiijniQaticntci  a"  third"  person  in  order  to  be  actionable. 

■j^T^  .,  i.r.->^oni    ''ictatirtg  to  a- stenographer  liable,  butnot  attorney, 
70;l....  ........     .   .     :3^*    'Sending  postal  card  wbiild-seeifiHo  niflke  liable, 

tho^ilhii  is~^li1':'f  delivering'  sealed'  letter  by"set*vaht'wtie'  dees- not  read 
it'.'^p.'*Sl6'.  :.  .jointly  coitipose-a-^iibellous  ietterV  i-t'-'lfe -a 

pubii6atipW-"by  each  in  the  Vre^fenbfe  tftWdt^er .       '■'  Cm¥.  71,       Ocnimu- 
nicatiOn'tp'wli'e  by'  htisbaM^ is 'fiDt- slanderous.      Con^iiinlbatloA'to  ? 
wife  defLlniifi*^  husband  ^iid:  v'ibe  versa'  is  a  pubHcat'ibn'.       As  iit^terers'  they 
are' resaidefd- as*  one;  as  subjects  of  defamation,  they  are  regarded  as  two. 
'"hen  the  cnlly  perscfn  to  wh^'  s'tatem^iT't-  is^'i!t-terecl--<f4?i''  ridl  ^bel^ieVe  It, 
and' knew  it  •'  ■  "-'t- true",  tel'     "•' enable.       13?Mase.   "' - .       '"    r>  spea- 
ker't'lVinks 'h..   .0  ;.aonef'"and-'t'alko  ..o  hifiiself,  bel-Ti^  'i-       .^.vo  r.^  uo  the 
pt'esen'ce' d/L  others,- '^it-'woVicf'^'be  heid' 'a  ijublioat ion.         .,_'n 'letter  is  mis- 
directed "t/b  another  p^s'b'n 'instead  b?  one  defafifed,'="lt- IS' freU'd  publioatioi 
■hen  deft'.- Writ'esietter  ^n*  puts  i.  in  Ifls  deskv  whetfe  another 

Darson  biZ-eak^^  open' -desk'  end'-  tbok  iette^  ourtr,  opinib'fts'-arie-^'ton'tMdiicJtor-y:,. 
some  hol'd'ingliiir:  liable  ;f9r  .a  kee0' I't.  in.       ''•enerally 


CTinj 


■M 


jGe  'i^ff.t  riiB.ffij?.  oJ  nc ij 


.30 


3B 

3  b 


.t'^vii- 


itsb  ,fiIuo« 


:i   90   J 


U8'8'L 


■it 

,:rl 

Uons 


■;i 

.  r 

■':V 

,  ti 

^    L    1.  ^  )J  C| 

';  r  !  x  r  r  n 


lOi 


'     -.it 
....  ...... .,dq 


146, 
speakiH:,,  publisher  would  ordinarily  be  held  liable. for  whg(t,,new6pape; 
contained,  although  he   ■"  '  idt  know  or  mi^ht  not  be . to J^l^.n)e  for  not. 
kncAing  what  was  in  the  y^y^c 
ch&r.^eable  fc5r  V^-   ---tiv,f  'n^ 
'dal'-s  ■businss's. 


p  is  liable  because  a  Rriijioipal  is 


!1. 


r^'i,  I  /  .,  LORD'  Y:   .     I  ,     p,  i-Vrl  ,   A^i,t;,^u:;L-  J;.c:!IUc:  .      "     ' 

HCiiim  to'L  libel  Gcntaifiel  in  a  iletteE'  addressed '"^  pi.^,  o„^l-xu^ 
hijB  vihh  being  f^  hypcorlt,8  and  ysin^  the  oloa^  of  ^eligidri  for  ■unworthy 
pucpQSfc.-.  .er  was  delivered  unsealed  Vo  a  sed\P<rit,-M-w}T6  dfiened''  it 

and  rea*  .it;  ,    ]B  ■■■. ,  tjiatc;  tiiia  w^s  a  .libel,  -thou^^ithe-><ords  •imi^ut-e  no 
punishable  ci?inte.s,  for  they  ar$.  oalculated  ta  villi.  n  an^  bring 

biJii  inlp  hatred,  oonteiftpt  and  Fidicu^le.      T-he  words  if  merely^' &fo"keri'- 
would  not  have  supported:  an  action,,  for  though  on- prino^iVre  ther^slibiild 
be:  no  distinction  be tjween  words  spoken  and  v»ords  wf Ttteh,' the- c^         -jr- 
tainly  establish,  such  a;   distinction;  and  'h?>M.  that  for  spoken  Vr 
mtsre  Menerai  abuse  no  action  lies^  ^  "-    ■-'■'   ~     '       "     '  •         ■■   ' 

Slander  is  oral  defan.ation;  libel  is  every  other  kiritl'' of  SiWf alr'it ion . 

If  this. statement  had  been  Mde  orallyUt' would  not  be ^6tionable 
per  SIS.,' but.  it.is  coniir.unicsted^fey'Bjeans  ether  than  oral,  and  it  is  there- 
fore actionable  per  S£.         if ferences' between  libel  and  slander, 
i.       ilander  is;only  a' ciVil  wrong  at  OOnniOn  law;   libel  is  a'^bfiininai 
offence  as  well  as  a  civil  wronr.       ".  ords  except  certain  de- 

fined classes  are  actionable  ofily  on  pr. of  that' special  damage  resulted. 
All  written  words  if  coding  withifl -the  ordinary  d-sfinitich  of  libel  are 
actionable  wi,Vhout  pr,,iqf  ;:3iai -damage.       Ijibei  consists  of  words 

calculated  tu'expubv  i  iran  iv-  uatred,  contempt  or  ridicule^  . -3.- ,.  I'lr-oth 
is  always  a, defence  t,o  a  ,oivil  .action  , tor,  slander ,  bat  truth,  tftOush  at 
connon  law  a"  defence  ig  -..  -^Tvi'   ^-':t"'0'"'  '"'^^-   1^0-!    is  not  always"  ■=  "efenae 
to  a  crirrlnal   crosscution.  - 

:■      ...  .    .70  L.    .  ,     .,.''.  a.    ->3p.;  24S. 

Ordiriary  defir\it3,on,  of  libel  is  wc.  ,  .  .     l-s  actionable  per  se. 

Class  c  s  actAcinabJa  per  c  ,uch  -larger,  -in  .Ubel  than  in  slander. 

All  words  which  would,  b£i  actionable  per-  SQ  if  spoken  are  so  if  written, 
•'■ritten  words  c.alc'ulatjed  tp  bring  «i.  nian  r into  hatre^i,  contempt  or  ridicule 
are  actionable  t,         ,  aitjicugh.  .tli^-sani^  words  iff,  spoken  woula  not.  be. 
"erious  question  Anpiiier,  th^pe- should- be -a  d,j;6t{i-nction  between  oraLajid 
written  words. 

publication.       The  dict^tiw;,   .._  defanjatpry.  words,  by  ,anattorney  to  his 

clerk,,  the  wtrGh*--i&«4fi*^-tdrM}e'^'f ect,  that,  a  charee  'nss  been  lodged 

against  ?  thir4  perscn^'ig  |i©t  3  publicutAon.        .     _  . 

A  iefanatofy  word^' tp^ his, wife  3bcL     ird  party  i? 

nc    ublicatic.  ,  person  ytts:r     ;;ir.fitocy  wordt 

wife  about  the  huscano ,  .      publicstion.     .  .      '.  1-  .  . 

3^5.'  r,.R'.SO^Q.b.:.  53c.  >S   An.  Law  Regt  n.s.  ^118. 


nibio  ciuow  isrieilduq   .anxsfisqe 
oJ  9d  Jc  ^nifiJjiQc 


,U 


on  biL'CA' 


I  r  V  r  r; 


uodjiv,  oiJoe 


o  Y 


:xJ.ouq 


^    !     crdinarily  a  publication.       S~Flarv.  L&WRev. 
^'^'       ^"^®  '5  "by  a'  p6st  dfffce  clerk  from  a  pos- 

oublicatiofl. 
M  ^-  nol  ecu  3ken  in^  a  pdblic 'Ui^ce] '  they 'niust 

'    -ictlcri -fOfdef^fTiatlon  is  ncl 
.^cauajx-  ^_-^:;iiy  icr,?,aii.i:^co, j,w  t^i  i^eiing's,  'burwiifere- the'-coni^Qhica- 
.x^.:  enioufit^  to  a„pyl)Uc  act"''--!  iQjury  •-         'mgs  nit)  aken  into 

conKT^-r^tiop  in  e^tin!a;(,in4;^^:,^^is._^^  '""  "■ "' 

riil  lie  even' if  the  th^rd'  p^rtie...  .iz  nbl^ be 1 1 ... v\.   .^;. 

statement;-.  .  aptipn,  will  aiSO  lie'' ifHfe^  po^irnni -ra- 

tion is:  fliad£~T3rr  tWiH  person"*;  3  not  repeat  ^t, 

^       ■         •  ufficient  Icuiated' tb4n:iWfe. 

43  J      .         .  u.entipna,!  an  n- to  a 

it(JTii|:;fi  ,p4j:\ly.  IS  a.  jpiuoJ^iQi5l,i,Oi  .  .  .     ''^.^   n.s. 

tS^".       'o    ;',cui       ■      ■  ,  a  •publica- 

t'  ■    .  :i  ;iii^.  .  ,    u.'ic  uiixi  Oi  i  aiii^iiaL  .T>in  ircK  Ljie  dns'~tn- 

L-...0.  .,0^  iwt.  i"  ,u.it.on  3iobe  by  ffi    t-'-;    ^'    -55  neither  intentional 

no-  n-.3]  i.c,=r,t,  t_^         nnblicatjoq,  but  ;......   ..„.,„.  .rrOT.^ ''iii^  IT;  flffles 

iL.    .  Lfust  3  librsrv  .vera  held  not  lisfclg  fbr'a  i^b'lics- 

tion  Tin -^^viBg  c  libei,  rustles  t^aVlnt;  no 

reasQi^tjO  k  

tiae  puiaiiisr  ipaper  is  liable  for  "f^e 'tiisertion' of  -^  iioij 

even-VBOUMfe  hs  is  aRGprept  l  and  had  forbidden  any 

such-insertion.       ;^ooley  228.      GQt<erb  on  tiit:  Law  of 'Libef  snPSlkndiet . 

Cconti: 

<  ..  aii.aiory  hcfjui  uGb.ci-UAantcii  lci  .  se,  buv  GiUiin;^  .:p3ciai 

HM/T  -  V.   '^.^q^J^i^:.  ^  ,,     1:.^    ^CMCD- Plees ,^- 15g8. 
Actic  3  for  slander.       Plff.  was  engaged  to  be  married 

IG  ',       ^ell— jiiUi-JLiiLsQjLi.-  -uchJffiarri^ge  ?aid  and  published 

-   piff.h'  r.tten  wiir.  cniidrby' a^Cectad-n  men^-.  k^ i  which  reppct 

pj..i.   lost- her  iiirrisA-e' w-ith  X.'    -PlftV.  osues' deft.     '  ff5?,LDy.l©Bs  ofj«ar- 
?^-'    •^-■-i-   ■;,.^.,r.  '^  fW  viF-f-      -^.^r.r^r.^   ..r,-  "' 0 wer.", i  ©Ic . ,   is  suff.i!e:i.ei)t  dam- 

v^    .  ...,o.in    .,.;     :,.l;:     .  .......    .^.    :plfP;-     '  ,.    <,^  , 

"tn 'oral' ^^'sVati'bri' ^-  -  stre  actionable  per  se-w-ictrbcut  crocf 

c  ;ial  d^r        ,  ot>fers  »^re  not- ectionabTe- unlesBi  ispepi^ttl 

%e  cl  '6ntmr\  MlTf^^'to  thi^' volume  notfc   .  .  As 

.   if  wad^ -cfl*adily-/ogn  bjg  gi?ound  pf  aotiof^-on-* 
jv   .  .OSS  of  itfapiliise;  rsijactiual  or  special 

,  and  rand-untii-statat^  of'I'B^t. 


O  r. 


•  sail  t|iat.plfr.       ^  -■    3tion  ivith  Mm 

J.  ;..i'i..,  unable.. i/o  ; vocii..-,   i-j  ;:ci   ricceSs^ry  ::--2ifs-and"busi- 


.C^--.       .    ..-,  t)^e  gspepxaiaaaia^e^  most  not  b^  ffencifoltir  rs-rtidte,'  but 
must  naturally  and  fairlv'result  ffoi'ths  wrongful  act  its'-:!!.       Illness 


.s  sqv.i    -•  ci 


line 


jof:  -J  cejec^nummoo  .5 

.    v:  1318(51  t  iniifcin 

isqoo 

^'  j_  o  -J  o 


/J^jsq 'fclMJ 


vlc)?i 


.     .f-J 

'^J 

I  'ion 

■  i     i:-     -  - 

\J 

IGO  Jic 

^Jw     ;^.iixvi,v,     i:x     uOXJ 

f  -  n  r  j 

■r't'  p:.-,fl5J     -„tn!^;-'ft^^1 

■  n3v© 

.noiJ^aafli  ilooa 

i1  ()b) 


148. 
irofli  exciteirent  caused  .by  slanderons  lanBiiagfe  is  not  the  sort  of 
as:i:i-.^t  whicti  rdf!ns  8  ground  of' action.       Judgment  for  deft. 

The  case  holds  that  the  vjif e:  did  not  prove  sufficient  special  dan;- 
age.       2GWT  thought  nipr-  •-ivoiou?  actions  might  be  brought  if  held  suf- 
ficient.      PeGilniary..,L9.  -  ^.^u\red  |pr  special  damage  must  be  the  ef- 
fect of  the  inguricus  incut^'ticn  uccn  scn^e  cerscns  ether  th-=.n  th-  ngrty 
bringing  the:i.cld::  .  .         . 

.     oberts'/ 5  B6fet  5-^ii;it  held  that  ■merely- d^prl'viTig 

one-af  fiiemb^'rBlrip  ih  a'"^^elig^ioU;-  ty  Is  hoi' aitl'dh^ble  fepeclal  d?i- 

Ho  ^tual  pecunlsry  ber.efit  is  att  smb^rsliibV 

Teft^fe  vvcrds  caused  plff .   to  lose  an-'  •--  ,i   lhs'  cciipanicn- 

ship  and  Ithe- hospltBlity^bf  divers  frienoc.  -^"'^'•'^•ji'Ti.J,- here 

i6-'sofre  tfe»r:por'§l  damsge  thougli' slight,  and'MGor-,   ..     .,....:..         ^ ^'<y(\i'"P^-' 

hdlds  ih^t' the  loss  of  ho^-ijitaliiy;- gratuitous •  food';!  drihk.   ,'^  frcn 

friende'/is  sufficient  special* J.aii!a^e^t6'fl3lrt9ln  the  abtiO!!,      Cn'de- 
•  uprer  /.la-dgment  for  plff . 

ri??  of  hospitalit  -^ufficient  temporal' damage^i^'^itiibugh^ttie 

hospitalitty  is  gratuitous.  s  to  plff's  damage: 

1.       It  miist  b4  iama^e  iv>»ich  occurs  throusi^  the  action  of  s  third  person. 
^.       Tt  muSlLt^,*' "    "" "  ^    "'    -  terrporal' benefit  of' sosre' pecuniary  value 

which  v,'oul9  L,i..-ir;!--       "~  "-^tn  cohf''"-^--   ""'"'"   •"^'^'K   -"'■n  though 

conferred  gratuitouslv . 

■^efsfflat,Tonmn?t  be  the  c*;ui?5"!fi' the-'leeJ^i '5^B^§'fef'^t;'R*^le?'rr  of  the 

d&mage, 

Tfie'  first  altered- is' soiretimes^ field-  nct-!iabe-  ?Sr'i^epititich^ of  • 
the  slftRder,  it  beings hel9  generally  that  that  is  tbb  remote* I'- result, 
but  Prof.  ^Frith  says'thst  it  .   intended' or  fBreSlw- the  repititioti' he 

shGoia  be  field" liable.' 

yifji^'^v.   ^^^I",   f.    '17,  Oct.   Pleas,   187   . 

'"'•eft.  ■  said  of  plff.,  a  stone  mason,  that^he  was- a  rini^ieaaer  ci   the 
9  hour!' system  whereby' plff '.lost 'a  good  situation.'   "On 'demurrer.     HPL?, 
§^''Cieie[*idge,'j:3. ;   a  ststeliient  falSelydnd  maiicfously-made  whereby 
another  uR:3er  ^eme'eipeuffistEnces  flight  probably  be  damaged! -is -too 
broad  a  rule -to  allow-i  ^feeover^  ijinder.  •'  ■The'i*ords-!Pust'^'4mii6^  want 

of  soMe  general  reqaisite  afe^hdnesty , 'eapaeiity ,  fideiity';  or- the  like', 
or  dofiriect  •the  imputation '"#ith  the ^plff'^S'Sf fi^e,  trade  or  business. 
'Fhe  worlds  -here'-ar^  -not-^acfetenable  in  -theifselves.      -Judgment -'for  -the -cleft. 

'^he  w(^pd'pingl*fader  is  by -no 'leans  a'-'Wepef  of  b^d -iffipc  i  . 

"^eclar^tidn' her^e 'is  a  warning ^'to  pleaders;  should  have  aiieged  dsm- 
^3.-^'s  lo  plff; -ih-his  cbcupatidn.       But  if  deft;,  says  something  which -he 
thin^ks  will  d!d'-daMsge,  and  says  it  ih  a  place  where  he 'knows -if.  isliksly 
to -cause  damage,  and  he  intends  it  to  do  damage,  and  damage  results,   he 
ought  to  be  h?ld;   i-f'it  is  fsl:??.  even -though^  words -are 'hot'def  amatory  in 
their  natur.  .         igers  on  '  .         .     ni;  Id.  by'Big^'iow;  87  to  91.       Eul 
though  an  adtion  of  defamation  will  noilie,   it  by  no  means  follows  that 
another  action  will  not  li    .  .    :       .   ^97,498. 


I    V-t9.i 


:3ni3ns 


I',  \;       '  '■ 


edJfti 


bluoflg 


iq   iO  Di 


H9. 
Pdi  on   :.   iiL'di  -1.    '10,'2ili  thinks  Lne  inbuib  and  not  the  daniagt 

should     Or    f^t^-        '■"•-iiTi     '-'^     ■^'^\:\CV.. 

'^■■";i;ION  IV. 
JU::  PI  it:  AT' ION. 
(a)     I'ruth  cji  Publication. 

FOS-:  V.  HILj^T/''H'',  p.  419,  Mass..  1BS5. 
-    Plff .  peqoested  oo-ur't  tG  Ghap^e  that,  truth  is  not  a  defence  to  an 
action  of  =3'lanaer ,    ' '    -  "I'e  words  ware '  spoken  nialiijlcUsiV  or  without  any 
reesdfl  on  the  part  ci  aeft.'to  believe  them  true.       H^Li),  that  this  was 
rightly  refused.    '  .' -^.pr-.^^-.i   nj^.o  i^   iM-i,-:  riggtion  ■^^fr-  forth  the  truth 
of'the^words  rrerei , . 

•Truth  is  a  deffewce- to  all  civirsctions-forotefafnation  although 
niiade 'wlihout  ?t»y  reasofi'to  believs  it  is  tru6  git- tfi€''tilft#'-deft.  siade  it 
aM^althoug!  de  it  With-'m&Iice.      ^If'dfeft.   s^ts  up  the  def^BcS-of ■ 

tt'Uth  and  fails,  the'daiiifeges  will  usually  be  mfigh'. enhanced.       Declaration 
shoold 'dilegethSt  Shapge  was  false,  bat 'iT-iis  jrtnecsggary  to  introduce 
any-evideace  of  falsity  unless  deft,   sets  up  truth  as  justificaticn. 
j        '    ^'       --^TON  TV,   (GontlDued) 
i        fb)  ^:si.c^oition  of  Arv6ther''s  Stuusicni. 
)<o FH rpg ON  V .  H'A m T^_L? './p ." ■  4 ?0 .  King's  Bench,  18?9..- 

:Tander  for  an  imputation  of  insolvency..      Deft,  plssdafl  h^'had 
heefd  and  been  told  the  sams  by  one-Xj       Plff.  denurs  ssnerally.:     'H^:[/, 
decJlarkticn  aljeg^s  thsif  deft,  falsely  and  maliciously  published  the  , 
slandei^  to  plff  s'd'affiSge.       In  ordei*  td>  tiaintain  such  an  action  there 
irust  be^hialice  in  deft?'.'  Snd  derKege  to  plff.  and  words  mast ;.be  untrue, 
'•here  wordi^  ape  falsely  and  n.aliciously  spoken  as  here, -the  law, iiicplies 
dama^'r.       ~3ft.  by  showing  he  heard 'the  slanderous  matter  fr6iE;anoth:sr 
does  ncL  ne£;ative  the  ciharge  of  ffalide,  for  i  person  rrgymalicsiously. re- 
peat what  another  person  may  have  uttered  upon  a  justiliable  occasien. 
'-°=  note  p.  4??1  of  thes;'  cases.)       Judgrr.snt -foe ipif £■*■;.  -      ...      ■.  l')- 

Contrary  to  old  law,  which  was  supposed  for  a  long  tirr.e  to  be  the 
other  wayl*"'   OiK '-law  overruled  distinctly 'by  this  case. 

.i^'bsolute:  privilege  and.  eohditional  or  qualified  privilege. 

"■hief  executive  ct  thq  nation  or  state  and  ffeo'bersi  oft  national  and 
of  state  legislatures  are  Drivilef<edabsoiateiy  as  to  gny'staleifients  made 
by'  therwhile  acting  in  their  official  capacity. 

?.       Judges,   jorors",   parties,  counsel  arid  witnesses  §r£- absolutely  priv- 
ileged as  to  relevant  statements,  in.  the:  course  of  ..iudicisl  proceedings, 
a-r^     Re-ports:  of  Biilitaryiand-,navy"OflacefS!.to-  their  £Uperiors,.,!}iade  .in  the 
coarse  of  official  duty.   .  Friviiege'' is.  absolute  in-.tbes€.G5se5',.'eveR  : 
Liiough  Tsde  with  irialice  in  fact  -'.nd  without  b'Slisf  inits  truth.' p.  4  ?i^, 
n--.  s . 

Defence  of  jriyiieigfe;  presupposes^  that,  d^ft.,  has  uLteredf.a  charge*: 
which  iS:  defamatory,,' untrue  aad  tends  to  dajiiage  pi.:. 

ION  VI.JL 

br\Oli.f:o.    V.   ;-^  .     -,  p.  c"S,  King's  Bench,   1S::.5. 


no  iO"i 


ilj. 


aousoiiai. 


:c'^ 


■:Uic  oj  Jiuoo  Dsjesup       .    ,  lS 
J  isq,  eriJ  no  nc 


L'oilJ'Is  bm 

bluotte 
ive  ynjB 


J  rrci.. 


icefc 
nels 


BOOO 


^ctfii  .seoJ: 


L?nc 


10 
Yd 


li^iJv 


ilJ 


Action  for  slander.       Plffs.  were  bankers.       Deft,  mude  sonie  re- 
marks froiD  hearsay  which  damaged  the  bank.       jt  appeared  that  he  exe^- 
gsrated  what  he  had  heard^,      Judge  charged  that  unless  tjie  words  wece 
SDOken  lalioion'sly ,  verdfci  ^shoul-?  be  for'':-       .     'VeAioi'tor  ietV. 
■^Motldn  for  a  ne'^  trial .  -tlon  ;  ja.,.       in  the 

ordinary  action  for'li-bei  proor  of  a:  -geotii^.       '- 

aotioiis  for -suc^i' 'siantie^%niy  as  is  piima  lacie  excusa)f)le,  as'ln  case  of 
confidentii&l  coMunicaVions  to  dne  asking  advice/  etc,,^,  is , it  ijeiqe^s^ry 
to  prove  actual  malice-,'      '-ule  atrsbli^    . 

Malice'  in  fact  mey  be  i.mportant  s^  icouttink  'jociuiiionai  privilege. 
1tel!ni3s,-'Co«n.''taif,- IH*^.-  Prcr-"  -^  ..-t,v-o  •^^-■lice  not  ,tiecessary  for,  pll'fs, 
case,  t)W  proof  of '  non--'sxl^ L . ..  mal ice  'npt  good  defence .' 

Oirisfeioh' of  VfoH  "V?licio'usiV"  le; 'indictxenl ,  7?  L.T.N. S. 

301.'      5  h ^tepher         .       .   '      ,         ,   n.8,,  J^ark^ 

by's  15llUof''Cj';Vsec.  58?,  e^\  necesssiry,  but  law  presunes 

malioe  means,- tl'.Bt' malice  is  nc  ot'likc 

pear  to  Siake'tiev  therefor:  not  aboli 

BiEielow's  Odger?  -"       '  '       :houla,.be,  retpiiisd. 

A,   havin^-lsft  H'..    ;,..  .c.    .v  ■..  desire  in  consi,.ja.i.Os-  o^.    /^ 

accusing  Mr  of  dishonesty  ret^'^n*-^  *       '     hnn?=  '"nr  her.-^Qxes  and  B 
then  eMf$e*>,feirt»it!h 'taking  a  ,  h  her' if  she  had 

co'nie  ba^l?  ta  wor   .         ^hbrfld  h'tve  !?aid  nothin  .:., 

infoT-iPitig -him 'that  2 'r  ,    :-  said  he 

should  giv  character,!:  a  money 

he-would' -give  her       ^  j  hm-he  told  her  that  A 

was  dishoneal.  dud^i-- .  sasijOn  v^as  , privileged , 

but  that'tbe  siaLeinents  ir.s::c  cy  l-  lc  /•  '  '^nce  ffoir  wjiich  a  jury 

might--iTifer 'Melir^- .  --^-i  that  f—   ''•■'M  in^u^i:        -^s  right,  in  lieaving 
them  tb- •t-He 'jury ,   .....   ir)  askiVit   o/.^,,  tlie  qiie'sixyu,  Mnetjier.  B  beiiaved 
the-  iirtbufatiofi' tie-  m'a'dfe'  df" 'a;  to  be'trlie.      'r'n'^'^j't'inn  ivp-.^,  '-  ■^■'--;>t,  i  V  the 
pt'edoBiinating  m'otiVe;''ls'1t'  T!3licfe? 

Is^  tfre  deft,  eniitl?  5  st-ate^sjit 

true,  hcwevefmistak^T  .^^   .        .       a  improper 

mbtive  would  destroy  t  le.  believed  it,. to.  be  tj?ue. 

■ ''     '        ■  ■  ,  liable,*  an?l,':if 

the  predoiTiinstir  lice  then  pircbebly  he  would  beliable. 

^"*''^RV1ll;i-  v.   HAvKlfJo,  p."S§^;  Ooirl'Pleas,  1851. 

...cii.  nad  disfi'issed  plff.  froir.  his  service  pnswspicion  Qi/v£ei&, 

and  when  biff;  ;was  in  '•'."^■'  - ; Ling  roon;,   "':    C2iled  jin  ,twc  empl9ye§s  and 

in'the  prssshce  6f  the,   ^:,,.  ..  „  pi'ff . 'uo.....   u..is  lao^uage,  ",I.^h|ye  disr 
triissed  this  i^an'for 'robbirlg  fi;e;  do  not  speak  to  hiir>  or  T  shall  think  you 
aS'bad  ss  hini."       HELC,  a  , privileged  ..ccinunicption.  for  it  was  the  duty 
of  thedeft. --aiii...8ij.o  his  if,  ..ants- from  $s,s©ciating 

with  a  TSe'rScjn  cI  '"       :cd,^  desig(|^tsd,,ths  plff .  to  .b 

It  y»-=  icii  reijut ft,l?.e  pre^sumption  ot 

malice,  which  would  oinerwise  arise  from  the  nature  of  the  words  used. 


lauoicil 

an  6  10 '1  noiJcM 

i    8i/0iJ0JB 

. Jnsbiinoo 

.;■:      C3 


asritJ  fcn£ 


jilsra 


■'»*:> 


15T. 
That  presomption  beint?  pebulted,  it  was  fpr  tjie  pi|i:.  \q  she.  ;   - 

lively  that-the  words  ttstfe  spokrn  maiiciously.      It  ^^..certAi^y,  QQt, 
nec'essary  in' order  to-efrablfc  a  piff..  lo  have  t^e-.quest^oD  of  ,Dialice„  sub- 
mitted to  the'  jury  't^iat  t)5e  evidence  shpuid;  t)e^  s.uc):v  aS:  necessarily 
lead?"  t.~;'i»..-  concrusion  that  ;n;elice  sxi.s.te6;,  l>ut, rjjt  ia  necess.ary  t;.<..o, 

the ahouid'-Tarse  a  prcbai>ilit,y  of,inal:ice.-;     .Here,  the,  evidence, 

does  ric3t  r'atse 'any  ptjobabilltiy  'OC"  raaiics',  .and-  so  that  question  ought  ■- 
not  to  be  left! -to ^ he  jury. 

Privi'iee'ed  ocoasi'on  i&  sa  ;bei1iter  phrase -tha%j|)Piviieged,;CQniinunicatiS(T 
Plff .  rnust 'pr eve' rpa lice -when  the  occasion'is  privileged,, 
miOV.^^:  V.  ^^OW'^^l,  p*.5SQ,  Privy  Qouncil,ie?C. 

:stt.  wrote  a  letter  oomplsining  of  plt'f 's'^cts,  io  an^QUiciai,.  po^ 
siticn,       ^'y  sent  it  to  the  /TonB  authority,' but; it  was.  h,©!;^  t^^iat.  this 
iTi^^'^'^c  aiLi.6rence  it  it  was.  done  throueh  an  honest,  inistake^,,     Judge 
c... ..-,..  lh?kt'/  unlike  the  cases  of  meBtpr  giyin|<  character  to  servant,, 
v^h'ere  one  clMftie  a  privilese  on  the-  ground  tjiat  ihe  coD'Biunicaticn  ',iaz 
n^e^Tii^'iHscWar^  br- duty  ,  he  must  prove  bona.  fide-..      ,        ,   , 
was  itfTons'.      'In-  all  cases  of  pirivilage  alike, .-.bona, .fides  wiil  be  prs- 
suiirsd  until  'iJlff .   has  shown  express  malice. 

'Point  of 'base  is, .where  was  the  burden  of  p^rooH      -One.  of,  the 
condititwis  of  ppivfll^e  is  that  defV.  should  b^liev  l. 

If  Got^dition  Is  privileged  ami  vltl.,  c  Lai  ins  that,  occcisica  c^n  nci  ce,'.' 
regarded  any  longer  as .privileged  because  deft,  did  not  believe  'what  he 
■-'t^i-' , '1^=  b'jr-'-'^  ■•?  on  Qlff,   to  prove  that  deft. .did  not  beli^v-. 
L         ..   yCLYN01JX,:p.:5|3,  Ol.   of^Ap^.j  1377. 

Slander.       t  clei'synan  nfiade  a  defa/iatory  stateffien .  is  curate 

in  Gohsultins  hiir^Ee  tO' his.  Gondust' in.  ^n;  ecclesiastic.         .uer. 

Jueise' in^  his  charge  impliedly  told  jury  that  as  the  occasion  was 
privile]?^',^  plff  •  i^ust  prove. -jiial ice.       H%D,  that  this  'if.'as  wrong.       -• 
'pMvilegie^' occasion  is.  a^).  fori ;SOjBe  , reason  and,.for  tii^:t„  reason  only.       11 
^ft.  u«3es  the  occasion:  for  aii;  luiirect  reason  or  motiye,,.  it  is  for 
another  r^son  and  the  occas-ion  is  not  privileged.    ^  One,  but  by  no 
meafls  the  o»ly,.'iiiidireoV  rriotive  whic^h  could  b?  alleged,  is  malice. 
f?9«l. question.-. in  this  case  was,  whether  deft.d'id  in  fact  i)elieve' his 
statement;  or  whether,  beini  angry  or  moved  by  SQuie  ether  indirect  mo- 
tive, he  did  not  know  and  did  nctioare,  -whether  statement  was  true  or 


not. 


Held  that  the  question' is  not  d? -reasonable  belief;  if  occasion 
is  conditionally  privileged' andSeft.  honestly  believed  what  he  said, 
then  deft,  is  privileged,  even  if' a  reasonable  man  would  not  have  be- 
lisved. 

Libel."""  Frllha  i'SLild  privilokc  "  ''Oiis   false.   HivL:.,  unat  deft, 
needed  tp"  show' t'not  only  proper  occasion,  but  good'  motive  also,. that,  i? 
that  the  cbmmaniceticn  was- Ttiafe' in  g'dcd'- faith,  for  a  justifiable  pur- 


J 111391.. 

.'.iQViJ 

....  w^. i-^  .1  ^wii  aaob 
.tJ   .ftai   80  o.t   .Ion 

A  in  11 


:.;ilifiv 


..liT, 


on  ^t^oi 


.    J      t  w    X   -J   .1. 


,i\iJ 


f 


Trrj-TTTv 


-sn 


pose,  and  with  a  belief  founded  on  reasonable  , grounds,  of  itsstruth. 
Probably  cause  for  belief  in  truth  of  coifimanicatioD  is  nedessary. 

■saded  in  substance  that  ttie  occasion  was' oonditionallv     i 
nxyijLw^ca,,  ind  that,  Me  stated  what  he  was  informed  Waf  tpue.   Court 
,  |]^ld  that  it  was  not  enough  that  deft,  should  havfe  believed  but'th^'bs- 
lief  must  have  been  reasonable*   Fiff.  may /feoii^  conditional  privilege 
vY  proof  that  left,  did  not  believe  or  that  :'he  hM  no' Reasonable  ground  ' 
for  that  belio. .   <o  authorities  before- this  ■  case  airid'Glark  v.'  lyoiynoux  , 
uiUi.   :-j  A:ii.  La»  Rev.  ?o7 ,   note  3.  N.H.  vi$w.  seents  better  view.   ^ 

If  occasion  is  conditionally  priyils^ed,;  plff .'  can  rebut:  1.  If 
3oniiiiuniGation  exceeds  reasonable  necessities  ot^  occasion,  eiher  in  rr;at- 
Ler  or  nianner  of  publication;  it, ds'  an  ab'iise '•cr 'the  'privilege. 

If  plff.  proved  that  deft.,  did  ndt  hOn^Btiy 'Relieve  his  statement 
^te  oa  true.,-  and- S.-  according  to  some  authorities;' biit- denieci^  by  others, 
if  plff.  proves  ttiat  deft,  even- thou' '•  '-' •  staJLerr.ent  be  trtre',' did  not 
have  reasonable  grounds  for  his  belicvi ,  ^,  ,   A.!'  if- plff .  proves  nialice 
on  deft's  part,;  there  is  only  one  right  irotivd  -  discharge  ot  the  duty 
or  protection  of  the  interest  which  gave' rise  to  tlie  bcba'sion  on  which 
the  conditional  privilege  rests,  '  Plff.'  by  proving  t'hBt-'''?^ft.'  sct'^d 
from  soiTiefiiotive  other  than  that  of  d/iseherging  the  dutv  :. 
tlie  interest,  which  gave  rise  to  the- occasion  can  rebut  conditional 
privilege.   One  of  the  few  cases  in  the- law  where- inctive  becomes  nia-^ 
terial.   It  woula  seem  as  if  it  must  b§  ihe  prinbipal  niotic  ,     ■ 
he  irdght.  have  had  other  motivgs  also. 

If  a  newspaper  publishes  a  peascnsLiv  luii   l-cmGi-l     Lriii,  iLib 
net  liable  for  libel.   4  fair  report  of  a  .iuaicial  pro..c^  ang' is  con- 
ditionaiiy  privileged.   SamS  as  to  proceedings  of  C^ongress  or  St.ate 
tegislaturss.   ■ill  probably  bs  ultiTStelv  held  that  all  these  are  ab- 
solutely priVilesed . 

Reports  of  public  ir.eeting  ,  .   '  ,  ngiish     te  see     io  toe 
far.   Open,  .question  irv  5-.>^.'  as  t-6 '"Whetlier*  repor ;  sxcept 

legislature  ana  courts  of '.i     ;re  conditional  i 

Public,  has  a  right  of  fair  criticisW  and  fair  co/imienl,  on^s,  work 
pubiishsl  and  sold  to  t.hV  public;  tfeat  'would  iae,  whether  .jury'' tho'ugii.tv 
tji.e.  criticism  was  fair,  if  it  v:^:;   su''      i^asonable  man  wou^j^-  have 
.iiaae.   ^"air  cotmnent  of  a  public  man  oi;  iiuiiiiitpd  facts  is  al^j^^wab^e  if 
H  i^  such-'lis  a  reasonable' rr'-'"  -^-I'l  ^-'.'e  -i^ie/'   ^ngligh 

■MQi),  Vli. 
JoQdit^Lonal  Privilege, 
' \^   Privileged  Reports. 

.K-tR.ip.  '^^=,,Q.-B..,  1860.  .. 
Plff,  j.. .  .  ..1.^...  i  ^iuition  t.>^  ...^  House  of  Lords  cb'ac'ging  if'high 

judicial  off  icer, with  having^ , thirty  yegtr a  before  made  Ji  stateirient 

false  tp  his  own  knowledge,'  in  order- -iljc  dece^ive  a 'eoiiijJR.tt8e  of  the  liouse 

of  Con'mons  a>nd  praying  inqi^ir-y  and- .-removal  of  the  off ice|S  if  the  charges 

:und  tf      ^yte  ^Asued  on  the  presentation  of  Che  petition 
and  the  charges  were  utterly  refuted.   HELD,  that  this  was  a  subject 


Isiled 


bne  ^seoq 


a  J  SOI 


(1    10   1S«J 


LUOW    J 


jexl  Jon 


r-^fiijn 


.•fisioi  -  iJ 

.      .tSlTi 

:.'J3  est  f.«|i 


.1119 

uioiiof, 

-'     -fe'l 

■io 

.^^      ..    ^             A.   w    , 

..^.  ^-.aw 

3::-:Tsdc 

9r|J    tns 

153 
of  firsat  public  concern  en  wi  ioh  a  vy^itenn  a  public  n.«^,aper  had  a     ' 

coaimenls  woula  rici  be  actior  jiiy  Bfioull  t.^Kik '' 

i- maae  in  fi-faiip  spirit,  au^  sueh  ;as"v;8re'  jusiiile'i  3  eir- 

^ui'  >' as'ciiscios^d-'in  an- ^ccuratfe  reps^t  cf  '^ebatev-     A  faith- 

ful Lo^^iu  in  a  (bub lie  newspaper  of  a  debalt,e  in  eiLr.cr  House^cf- Faplia- 
iiiSTit  ^^-ti^^niri-  mon^sr  ^ ■? ---^'H^ing  "to  tfie  ?^'-^"--ter' of  an  individ^aal 

v^^'-'  --:-  ^ -  :oiirse6f  debs^L. ,   .0  nbt  adticMbie  at  the 

...     -'ihe  psrs&h-wfibse  character  had  be&n  oal led' ih  question.      Ttie 
publication  is  privileged' on'tfie'' same 'prifljeaple',  vi?;.,  tliat  the  advan- 

ublici;  .he  bbn.iounity- at  lar^e- out'V  any-'pFivate!iT).TOT".v 

r bruiting  from  tjie"  publieatloin. 

'  ""iditionsj  9  in'B-Harv.  L«W' Rev.     ■ 

o&se  GO  this  subjeci  *na  also  on- the  "gfowtti  cf  the 
-^  -  "    - 1  the^  top  of.'  p.  467'  is  'ifliporta'nt ,-  and'  4^^  often 

■Libel  ccirplained  of  was  cont?ined  in  the;  report  of  an  examination 
of  a  debtc  :ustca.v .  ieding^  held  in  eaol" before  a  reg- 

istrar iti'- bankruptcy  under  t^e  bankruptcy  IqL  ^p^- .judicial  a;ad m 

-   publj"   ,':i;   ;  .  -^ir  report  Iherefcre  ot   tho^^fe  profeeedinRs.iS,  pro- 

i  .  is  was-  fa  pfi'    '  even:  thoneii' the  'prcceefliie^^  were 

bsfori  a.:  lofcci  not  in  a  public  plac^  . 

fair  report 
-  cv  -J  ii.  i.-3lfevant. 

public.       :.o  exfee-ptioh-s  are 

.:  --  .  .-. -.-   -:.-    .-:--..   _  _     is  for,' th^'  public  Seed  that 

it  b^  kho^nl     '  An' officer  >'aki  aurt  Record ■  public 'V/'ouTd  be"h6lrf'to. 

sbch'-'a'- purpose. 
'■-^n/     .  .  Pa^as',  1876. 

■RC  believer-  elves  •  rieveclr  by- the  conduct 

laii>  upon  hi  ?es  er  sala- 

,   applied  tc  i:  tT3£istrat£   m  cpsr  court  'for  Y^surrncns  under  the  master 
c:       -  1-.-'-     -+  -  ngf^jbtrgte- ^*clined  to  entertain  the  appiica-- 

ti:,:,     ..,.—  .-...;.-    JL         ' -''    ^'■■'    •'•^■;-'-;t   •>'--  "dt  a  critrcinal  court.      If'e 
J-JL„.   aftewerdf:  puW  ^  ,;.  .  i  ,.,port  which  "t.he  jury  f  oui  d 

tc  bd'S- rtr^ort  of  i  hicb  >k-  oc^  tile  magi-stratfe.''      ffi?L!J,' thi^B 

'■  -rrret^t-^-dr  Dublicatic^n.       A ithoaoh  it- va?;  f(>tiin*d'-iri '4iii-s 

:•-?  :.  ■  f  have  pc  ■         '  V'jupjsdic- 

jion  enou  tifrony  and  so  i  -ot  the  result-.Qf  the 

.   DtiL  the -nature  of  ^t he  oa-se. 

ort  of  ex  parte  proceedings  is  con- 
:iLion3iiy  p.-iviiegeJ  .  -ccosainss  are  ex  parti,  ^hare  on* -party  ori- 

■^  ;■   "".-"■^'zntei!"'     If  liic  court  should  order  a  case  to  be  Mid  behind 
.  .Mo:.  -a-:oPSi -Fr(9f  J  '?''^'^''^"t:'^"^"''t(S  a  ir:an  fieht^  be-.;PQnish^-'' t'---  contempL 
_-   couft  if  he'r§poptc-    ,.,   ..-„  hardly  bscauss  tb-  n-^v,  _       3  not  prj   - 
ileged.'  '  Thi     is  dcabtfui-ho'.ev^r.       Matter .dn  :  .    .     ongress  duriig 
s^ret  session  is  not  priviler^ed. 


S  Vlk              1 1^  wou . 

6t)H  0-   jyr-liceis  yi 

i        !   1„K 

'1 -j'  r-o'c-i-ct  r-r-r-'c     ->r>7ir-l 

^r     >,b 

■i)0 


■.'0  •?!:  ^c•ii^•^i■  Fdyq 


"  r 


^   «BW 


^^Ini-  ■ 


Jo 


sr  .tpffj  leJTJ 


IsnoiJ 


154. 
...   .vOurL  of  App,^  1S77. 
■lea  ana  c  ^a  ior  conspiracy  Diff-.  to  defraxia 

uii.:_r'.'.-ribri.--..       Plf':.  iioroad  at  the  time  oi   ine  tr''  '         -' 

I'snce  was  tnaL  qhl.   ><ac.  really  ths  guilty  party,       "'-      .    msiisnea  i 
report  orf^-  ir^lal  in  a  paniphlet  giving  the  ope^nin^,  ,;.,.^ch  of  counsel 
for  the  P-U    .  ,■  -'W-say-iBg  ti^hat  it  was  borne  out.  by  t>^  -vii.^n-?  and  then 
giving  an  aBstir^ct  of  the  speech  for  the  defence  an  '     suTr^'iri? 

Rib 'in  full.         .ff.'sues  deft,  for  libel.  :       -,; 

the  report  was  fair  or  not. 
;le  Is  that  a  report  should.be  s'  fai; 

It  must  give  ?/it,h'  substantial  accui 
ui.iiL  passea,  de' ' '  '  ^     ;•      ^     ~   ' "  ■ 
.  lull  report.      01  lxu-.-icii 

the  report  is  found  in  a  paniphlet no  diffsr^..^...       .  r-^^^   ^..co  ..i 

iftiH  is  a  fair  reooft  is'fcuna  on*t:.-''76  of  iiiicj^''  '^?>ses.       The  tp'^^t   i^^ 
does  the  repc.         .3  peot  ir  notion  of 

pi  ace ':^ 


ceedm^s  -c 
eral-'^^^CL,  c 
It.  need  not  b 


■'  true  report  of  the 
newspaper  by  an  attorney  in 
privileged  nc^  :   ^    ' 


jourt  of  justi- 


Unibrf  ~w6rl<Hbifs''e's  ^'t. 


..     .  .  i!n^deft'_  . 

eV  0:.  .)^  iT\ft\\'  tl 


vrit!: 


agre?  ^    '■'''■■  '  '"''- 
pr&b 


I  i  ^        • 


:abls  from 

icr   ^ricunaF'df  -i:  niu-     ; 
.v'  v.o  marts'  p.  . ;,.  .,  ;;d  to  say  that  ha 

it.  Wi^:nt    trsh  f'^'r     'n|iJ   t^^t    P^.v]  i  F.wp.v^t 


> '— i-L    '^J  i 


Libel  for  oublishint:  t-iole  about  the  plff .  in  e  rredicfcl  jour- 
nal •■'.  -.  :ii£acti3r;  dI'  '  efl .  :  ?- gave  a  brief  acct. 
c:    .  c-iefcyr'                    ilted  -             ekpuflsicn  0; 

pl  ntiali             .           ' :  , 
leri 


I-  for 


I- 

^  ■  all  r 
ments  till  the  closs. 


ri^l,  sbr 


I 


Sfl>f 


.nu 


mo 


3(1 


la 


155. 
Dose  A  iiisi?-  dii   ixoeeaineiy  aelainaLory  aeciaration  or  bill 
akiiu   '  iuring  the  vacation  of  the  court.   Suppose  C,  a  newspaper  man, 
pubiio  :^..  it..   H':Lr,  that  i^  is  not  privileged.-  lf^   Mass.  ?.0? . 
that  case  the  defencs  was j/art  of  a  judicial  procei^ing.   But  the  Cc: 
sucDose-cl"  "is  not  a  jud'i'ci a/ proceeding,  but  sirply  ^n  act  of  the -p^rrtv 

If,'  end  so  t     .  .  to  privilege  it  does  ;^ot  apply. 
;■■■  '    '   V.  ".yPB'^LL,  .  ^2,--N.h',  187^. 

yf  accusing  plff.  of  crime/   Flea,     teftg.'''Were 
publl         dws/03per  and  as  such  it  was  part  of  their  dnty'^'tt  ■giVte 
to  their  readers  su6h  ifenis  of  rnews  as  the/ might  prooerly  .ji^dge''-t(J  be 
or  intefes't 'and  ■value  to  the  community,  >r-'*-?t  they  published-  th^'ar- 
ticie  tc-'^t'^'i'^^'^   6f  in  good  faith,- belie vi/i.-.,  with  good  reason  that 'it 
was  tous.  ,   ,  that  the  plea  is  not  a  good  defence.   Deft's  judgment 
of  the 'crbtf'^iet^^  of  the  publication '-t^rtcf  evidence  of  it^^awf-ijlness. 
It   .       'been  alleged  ■that  the  interests  of  tfre  ■6on^niunity-'wol 
w8iild  hcivd'be^'n  promoted  by  the  pa  bite  at;  ion  if  tfue. 

Lai.     linitely  settled  fn  accord;  "except  where  statutes  cover. 
NewspafJer  publisher  would  be  jQ^^tifl^i-if 'ant  oth^r  citizen  wo^li-M 
jtistified:  rrers  fact  of  his '^'basin^ss  gives  Mw.   no  greater  ri^ftt  ■■Shari  ^any 
ofie  else  in- the  corririihity. ' ''■"  ■■--'  i-f.  v.-.-nt. 

'.v>!3t  reports -are  priifi'fel^df  •  Ansi-.d  :  i-.n    i,,uOii,^.   vhat  ■•bod?ies? 
fthswer:  all  public,  judicial  and  legialstive  bodies  though  ex  parte.- 
Also  nothing  is  Isbel  which  is  merely  cofi^nient  on  a  subject  fairly  open 
to  public  cOrrinent.'  Siich 'as -Matters-'ofpablio  welfare.   In  the  case 
Of  printing  a  bodlr,"  the  inatter  4-s-opei^"t'6'tF)^  j^ul^iic  to 'read  by  the  act  o 
6t   t'he-'par4fes  theinselvesv  it  "siiKJh  'bo6R'4i  ^3:3/ -s^^   criticis-iB  is  of 
llsHtobe  8  fair  conirent  and  so  jastifiab-li^r  '-<4.  K.*  F'.]197.  See  p.  AA7 . 

'  was  well  settled  until  lately  ^^t  leat^t^^that  a  criminal  prosecu- 
tion would  lie  for  defamation  on  a  deceased  if  it -injured  the  relations. 
Odgers  on  Hef.  star  paging  375-6.   L.R.  1?  O.B.H.  Queen  v.  Londshevr 
holds  that  no  civil  action  lies  for  slandering  the  dead.   In  the  Ij.i. 
tflere- is  no  case  of  a  civil  action  beine  carried  to  th=   hi-jh^-r  '^oor-:,-- 
thpt  Prof .- '^tiith  knows  of.   Probably  there  are  none. 

-p'OTION  VIL  (continued) 
?b)  Coftin'unications  in  the  conmon  interest  of  the  ipfiker  and  receiver,  or 

in  the  interest  of  the 
rraker  alone. 
H^;^y^!.'  V.  FUGH.  p.  484,  Con'.  Fleas, -.1B8S. 

•''Cticn  for  libel.   Plff.  had  sold  his  stock  in  trace  at  aucLion 
iiu;  ihe  proceeds  were  in  the  hands  of  the  auctioneers.   Heft.,  who  haa 
sold  plff.  goods  on  credit,  procured  his  attorney  to  send  a  notice  to 
auctioneers  not  to  part  with  the  money,  plff.  having  coDinltted  an  act 
of  bankrut)tcy.   This  was' the  alleged  libel.   Judge  charged  that  this 
was  not  a  case  ih  which  eood  faith  and  belief  in  truth  of  the  words ■ were 
justification.   HELDv  that  this  was  wrong.   A  communication  made- by- c 
person  im.mediately  concerned  in  interest.  In  the  subject  matter  to  whp.ch 
it  relates,' to  protect  himself,  believing  it  true  and  acting  without  •; 


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IKS 

aialicious  motive  is  no  libel. 

Occasion  was  a  matter  of  interest  to  the  speaker. 

LAALl^SS  V.  Tgli  AN3E:L0-E3YPTIAN  COTTON  CO. ,.  p.' 486,  G.B.,  1869. 

Action  for  libel:  defts.  published  of  plff.  their  manager,  in  a 
report  of  the  affairs; of  the  con:pany,  these  words:-"Shareholders  will  ob- 
serve a  charge  of  IS'OO.e  for  deficiency  of  stock,  which  the  manager  is 
responsible  for;  his, accounts "^have  been  badly  kept  and  have  been  ren- 
dered very  irregularly."   HSLD,  that  as  the  report  was  a  necessary  and 
reasonable  mode  of  cormunicating  to  the  stockholders  what  they  had  a 
right  to  hear,  the  communication  is  prima  facie  privileged.  And  there 
being  no  evidence  that  it  was  not  made  bona  fide  and  without  malice,  plff 
has  no  cause  of  action. 

The  communication  here  is  of  mutual  interest.   The  publication  by 
printing  was  held  necessary  and  proper  here.   81  Howard  802  has  a  dic- 
tum contra,  but  Prof.  Smith  thinks  the  case  at  bar  right. 
PADMORS:  v.  LA'^RSiNCIi,,  p.  488,  Q.B.,  1840. 

Cass  for  slander,  in  charging  plff.  with  having  stolen  a  brooch  be- 
longing to  deft's  wife.   It  appeared  that  plff.  had  cal.ced  at  deft's 
house  and  soon  afterwards  the  brooch  was  missed;  that  deft,  then  went 
to  an  in  where  plff.  was  and  stated  his  suspicions  in  the  presence  of  a 
third  party;  that  plff.  with  her  concurrence  was  searched  by  two  womien 
called  in  for  the  purpose,  and  to  whom  deft,  repeated  the  charge.   The 
brooch  ivas  not  found  but  it  turned  cut  later  that  deft's  wife  had  left 
it  elsewhere.   Judge  charged  that  verdict  must  be  for  plff.  if  the  words 
imputed  felony,  as  they  were  clearly  not  privileged.   HELD,,  that  the 
question  should  have  eone  to  the  jury  whether  the  charge  was  made  bona 
fide.   Charges  otherwise  slanderous  are  protected  if  nade  bona  fide  in 
the  prosecution  of. an  inquiry  into  a  suspected  crime. 

HARRISON  v.- BUSH.  p.  ^90,  Q.B.,  1855, 
m   Action  for  libel.   Plff,  was  a  justice  of  the  peace.   Deft,  had 
and  others,  inhabitants  of  the  borough,  sent  a  mem.orial  to  the  Secy,  of 
State,  complaining  of  plff's  conduct  as  magistrate,  and  making  criminato- 
ry charges  against  him.   HSL",  th3t  question  was  whether  deft,  acted  bon 
a  fide.   A  communication  madebona  fide  upon  a  matter  in  which  the  party 
has  an  interest  or  regarding  which  he  has  a  duty,  is  privileged,  if  made 
to  a  person  having  a  corresponding  interest  or  duty,  although  it  contain 
criminatory  matter  which  would  be  slanderous  without  this  privilege. 
Deft,  here  certainly  had  both  an  interest  and  a  duty. 

Two  sentences  in  this  case  contain  a  good  summary  of  the  law  on  the 
sub.'ject  and  are  often  quoted.   They  are  "A  co.Tmunicaticn  made  bona  fide 
upon  any  subject  natter  in  which  the  party  communicating  has  an  interest, 
or  in  reference  to  which  he  has  a  duty,  is  privileged,  if  made  to  a  per- 
son having  a  corresponding  interest  or  duty,  although  it  contain  crimin- 
atory matter  which,  without  this  privilege,  would  be  slanderous  and  ac- 
tionable."  "Duty,  in  the  proposed  canon,  cannot  be  confined  to  legal 
duties  which  may  be  enforced  by  indictment,  action,  or  mandamus,  but  must 
include  moral  and  social  duties  of  imperfect  obligation."  . 


157. 
PROCTOR  V.  WEBSTER,  p.  493.  Q.B.,  1885. 

Libel.   Pitt',  was  sanitary  inspector  of  the  borough  of  Newark. 
Dfeft.  wrote  a  letter  to  the  Privy  Council,  charging  plff.  with  irregu- 
larities in  the  exercise  of  his  office  and  with  taking  a  bribe.   It  was 
coi^tended  that  the  comniunication  was  absolutely  privileged,  but  the  judge 
chaVged  that  malice  would  make  deft,  liable.  'itlC,-  that  tjiis  was  ccr- 
rect\.   The  charge  .vas  only  prima  facie  privileged.-   Analogy  of  judicial 
proceedings  does  not  apply, 

S'eCTIOl^  VII.  (continued) 

(c)  Communication  made  in  the  interest  of  the  recipient. 
CHILD  V.  APFLKCK..  p.  495.  King's  Bench,' 1829. 

Libel.   Flff.  had  been  in  the  service  of  defts.   Later  another 
person  enplcyed  her,  and  wrote  to  deft,  for  her  character.   Deft,  wrote 
that  while  in  her  employ  plff.  frequently  acted  disgracefully,  and  since 
her  dismissal  has  become  a  prostitute.   Deft,,  afterwards  made  similar 
statements  to  the  persons  who  had  recon.mended  plff.  to  her.   Judge 
charged  that  letter  was  privileged,  and  communications  to  the  persons  who 
had  recoiLmended  plff.  were  not  evidence  of  malice.   HFLD,-  that,  this  was 
correct.   The  wholeletter  was  prima  facie  privileged.   The  gist  of  de- 
famation in  giving  character  of  a  servant  is  actual  malice,  of  which 
there  was  no  evidence  hers. 

Notice  that  here  Mrs.  A  was  asked  for  a  statem.ent  concerning  the 
girl.   It  is  the  statement  of  what  the  girl  did  or  had  been  since  she 
left  *.Ts.  Affleck's  employ  that  was  the  chief  bene  of  contention  in  this 
case,  but  Prof.  Smith  :thinks  this  is  fairly  in  ansv/sr  to  the  letter  that 
f/rs.  .A  received  from  !/rs.  3. 

CCXHfrAC  V.  ^ICHARD>,  p.  497,  Com.  Fleas,'  1845. 

Action  for  libel.   One  case,  1st  mate  of  a  ship,'  wrote  to  deft, 
that  plif .  the  captain,  had  been  in  a  state  of  constant  drunkeness  during 
the  voyage.   Communication  of  this  by  deft,  to  shipowner  was  the  libel 
alleged.   The  charges  were  found  to  be  false.   Verdict  on  general  is- 
sue was  for  deft,  as  plff, had  not  shown  malice  on  part  of  deft.   Rule  fo 
for  a  new  trial  refused  by  an  evenly  divided  court,  two  judges  holding 
that  the  communication  was  prima  facie  privileged,  as  a  person,  having 
information  materially  affecting  the  interests  of  another,  and  honestly 
conmunicating  it,  though  having  no  personal  interest.   Other  two  judges 
thai  privilege  did  not  extend  so  far,  as  here  there  was  not  even  any  mor- 
al duty  on  deft,  to  ccmriiunicste. 

Notice  that  hers  the  deft,,  volunteered  the  Infcrmation.   The  law  is 
new  settled  in  favor  of  this  decision. 

Notice  on  p.  501  "I  cannot  but,  think  the  mcrsl  duty  not  to  publish 
of  the  latter  (captain)  defamatory  matter  which  he  did  not  know  to  be 
true,  was  quite  ss  strong  as  the  duty  tc  conmiunicete  to  the  ship  owner 
that  which  he  believed  to  be  true."   This  theory  if  carried  out  would 
destroy  conditional  privilege.   The  argumient  proves  too  much.   The 
question  is,  is  there  a  duty  sorr.etimss  tc  conxunlcate  matter  without  be- 
ing asked.   The  law  is  now  settled  by  the  weight  of  authority  in  favor 


of  Tindall's  view,  that  it  is  often  a  duty  to  tell  things  unasked  which 
you  do  not  know  to  be  true.  Volunteered  conmiunicaticns  are  no  differ- 
ent in  law  froiT:  asked  for  coiiiiiunications. 

Ahere  there  is  an  enquiry  for  the  information,  the  jury  is  more  like 
ly  to  find  for  the  deft.   But  the  duty  is  net  Confined  to  legal  duties, 
but  is  extended  to  moral  and  social  duties  -  imperfect  obligations. 

It  would  seem  c.s  if  information  given  in  good  fsith  where  plff .  is 
a  political  candidate  ought  to  be  conditionally  privileged,  but  the  au- 
thorities are  in  conflict.   Chase,-  S3  Am.  Law  Rev.,  346. 
Joannes  v.  BFJNNli'TT,  p.  504,  >/ass.,^  1882. 

Action  of  tcrt  fcr  libels  contained  in  letters  to  a  woman  to  whom, 
s  the  plff,  was  then  a  suitor,  and  was  afterwards  married,  endeavoring  to 
'dissuade  her  from  entering  into  the  marriage. i-  The  deft,  was  the  former 
tWily  minister  and  being  at  the  house  on  a  visit  had  been  requested  by 
thi^  parents  to  write  this  letter.   H?LC,  that  the  deft,  was  answerable 
since  he  haa  no  interest  in  communicating  this  intelligence  and  had  no 
duty  to  perform. 

The  statement  was  made  after  the  .c-it.  ii.-ja  ceased  to  be  pastor  to 
the  family.   The  court  decides  nothing  es  to  whether  he  was  privileged 
when  he  was. 

s'lhy  was  net  this  really  the  same  as  a  communication  from  the  father, 
being  at  his  request?   The  point  is  net  not.iced. 

BENNf<;TT  V.  DEACON,  p.  503,  Com.  Flees,  1846. 

Case  fcr  slander  of  plff.  in  his  trade,   ''^C.  entered  into  a  treaty 
cf  sale  of  timber  tc  plff.  Bennett,  but  before  the  sale  had  been  finally 
agreed  upon,  deft,  meeting  C,  asked  0  if  he  had  sold.   "^  said  "Ibelieve 
1  have  to  Bennett."   Deft,  said:  "If  you  let.  him  have  it,  you  will  lose 
it,,- as  he  owes  m.e  25F  and  I  em  going  to  have  him  arrested."   a;.C.  re- 
fused to  sell,   HIi'LD,'  judgment  for  plff,- the  information  was  volunteered 
and  not  bona  fide  made  in  response  to  inquiries. 

The  court,  here  were  equally  divided  and  so  the  verdict  before  the 
single  justice  stood. 

SECTION  VII. 
(d)   excess  of  Privilege. 
TCOGOOD  v.  SPYRING,  p.  508, >  Rx.-,  1834, 

This  case  will  be  found  at  the  end  of  this  section, 
DUNCOi^Ei^;  V.  C/^NISL,  p.  510,  Q.B.,>1838. 

Libel.   Plff.  had  been  a  candidate  for  Parliaiftnt,   he  had  ad- 
dressed a  circular  letter  to  the  electors  of  the  borough,  of  whom  deft, 
was  one,  asking  for  their  votes.   In  response  to  this  circular  deft. 
wrote  a  communication  tc  the  newspaper  containing  matter  relatinfe  to  the 
private  conduct  of  the  piLf.,i  imputing  to  him  fraudulent  conduct  in  cer- 
tain m:oney  transactions.   Later  deft,  wrote  another  similar  communicatic 
Contended  for  deft,  that  as  the  communicitions  were  made  by  an  elector 
to  his  brother  electors  regarding  a  candidate  fcr  office,-  they  were  priv- 
ileged, and  question  of  whether  they, were  made  bona  fide  should  be  left 
to  jury.   rJELBv-that  -it  was--not  necessary  to  leave  this  question  tc  the; 


159. 
jury,  tor  however  large  may  be  the  privilege  of  electors,  it  would  be 
extravagant  to  supDOse  that  they  can  justify  publication  to  all  the  world 
of  facts  injurious  to  tjie  character  of  a  candidate. 

Probably  the  better  view  is  that  taken  in  the  next  case.   Assuming 
tnat  the  communication  'was  privileged,  if  only  .T,ade  to  voters,  then  ii, 
is  a  question  for  the  jury  whether  the  rr^ethod  of  coniip.unication  was  rea- 
sonable or  not. 

MARKS  v,  BAKRR.  p.  512,  S.iinn.,  1881. 

Libel.   Plff . ,  City  Treasurer,  was  candidate  for  re-election. 
Defts.,  publishers  of  a  newspaper,  called  attention  in  their  columns  tp 
8  discrepancy  in  the  accounts  of  plff.   The  insinuation  that  plff.  had  : 
enibeazled  was  not  true,  as  the  accounts  were  all  right,  but  deft,  acted 
in  good  faith.'  HSLD,  that  as  the  subject  matter  of  the  coiinr-unication 
was  one  of  public  interest,  it  was  prina  facie  privileged,  and  the  defts. 
were  not  lisble  without  nalice. 

Undoubtedly  a  communication  to  voters  ought  to  be  privileged,  just 
HS  n:uch  as  3  conniunicaticn  to  a  firn;  about  to  hire  a  private  person 
ought  to  be  privileged.   Private  and  public  ought  to  ri'ske  no  difference, 
^ee  22  Am.  Law  ^ev .   346  for  discussion.   Fair  -o  .-   consinent  on  candidates 
is  a  different  question.   Commenting  on  admitted  facts  is  generally  not 
actionable.   In  order  to  make  a  statement  concerning  a  candidate  priv- 
ileged in  states  where  such  privilege  exists,  there  must  be  an  actual 
canvass  for  ncminaticTi,  or  something  going  on  to  show  thst  the  plff.  In- 
tends to  take  office  if  elected. 

Conditions  other  than  the  occasion. 

Under  this  heading  two  questions  present  themselves.   1.  Was  the 
occasion  privileged?  2.     '''ere  there  other  considerations  present? 
Prof.  Rmith  thinks  that  there  are  other  conditions  besides  actual  malice. 
HATCH  v.  lAW.   p.  514',  Mass.,  1870. 

Tort  for  publishing  in  the  Taunton  Faily  Gazette  the  following  no- 
tice concerning  plff.':  "George  Hatch,  having  left  mi  employ,  and  taken  u 
upon  him;self  the  privilege  of  collecting  my  bills,  this  is  to  give  notice- 
that,  he  has  nothing  further  to  do  with  m,y  business."   Plff.  requeste. 
court  to  rule  deft,  was  not  authori2;ea  in  publishing  notice  in  a  newspa- 
per.  Judge  left  it  to  jury  to  say  whether  it  *^as  a  reasonable  miode  of 
communication.   Verdict  for  deft.  ^'<:Uj,   that  judge  did  right.   ^ere  ■ 
fact  that  notice  came  to  persons  not  custom.ers  of  deft,  would  not  of  it- 
self defeat  the  privilege.   It  is  a  question  of  reasonableness. 

The  question  here  and  in  the  next  case  is  whether  the  communication 
exceeded  the  occasion.   Communication  must  not  exceed  in  matter.   The 
statement  miust  not  be  given  greater  publicity  than  is  apparently  reason- 
ably necessary  to  discheree  the  duty  or  protect  the  interest  giving  to 
rise  to  the  occasion. 

This  case  is  in  conflict  with  Duncan  v.  Daniel  and  Prof.  Smiith 
thinks  that  on  the  question  of  privilege,  it  is  nearer  right. 

'.WILLIAMSON  v.-FRR:AP,  n.  515,  Con.  Pleas,.  ie7<i . 
Action  icr  iibsl.   n-::     .g^  ji^g^  ^^.^   g  charge  of  theft  against 


160. 
a  girl  oontaineQ  in  a  telegram  to  her  parents,   HELD.'  thaL  a  communica- 
tion wnich  would  be  privileged  il  male  by  latter  becomes  unprivileged  il' 
sent  t.hrough  th$  telegraph  oil  ice,  because  it  it   necessarily  communica- 
ted 'to  unprivileged  persons. 

*A  statute  forbade  clerks  under  penalty  tp  disclose  the  contents  of 
a  ihessage.    ,■■,. 

In  th,is  case  the  mode  of  communication  ,v;at?  periiutJo  net  reasonaole. 
The  cbmmunication  must  not  exceed  the  oooa&ioti   in  time,  place,  matter  or 
manner  of  publication.   y slice  is  not  the/only  case  of  excess  of  privi- 
lege.  Sending  the  communication  by  telegraph  was  perhaps  strong  evi-  ; 
dence  of  malice. 

Pb'LL.WA;N  V,  BILL.  p.  516,  Gt..  of  App..l890. 

Cefts.  dictated  a  libellous  letter  to  typewriter:  and  then  sent  it  lo 
Pullmati  &  Co.   Their  clerk  rea:^  it  as  it  was  directed  to  the  firm. 
Hf^j'LD.'.that  there  was  s  publication  in  both  'instances.    ■  s  it,  privileged 
To  mal^e  a  remark , privileged  there  must  be  an/  interest  in  nearing  it  to 
the  hearer.   Her:e  there  was  clearly  no  inf^-^^t  in  the  typewriter  or  the 
clerk.'  Here  thst^e  is  no  privilege. 

Here  the  deft.'  according  to  the  Court  exceeded  his  orivilesein  the 
manner  of  publication.   See  Harv.  Law  Rev.' p.  53. 

Some  firms  would  have  to  dictate  their  letters  or  go  out  of  business 
to  them  such  s  rule  would  be  a  hardship. 

'T'hompson  v.-  DA3HW00D,:  p.-  519,  Q.B.,  ISSH. 

Ceft.  wrote  a  libellous  letter  concerning  plff.  to  a  person  to  whom 
it  would  be  a  privileged  oonmunication;   By  mistake  hs  sent  it  to  wrong 
person.   Question  was,  whether  this  defeated  privilege.   HELD,'  that  it  • 
did  not.   There  was  no  evidence  of  malice,  which  is  essentisl  to  defeat 
privilege. 

See  Pollock  on  T. ,  245-6 — comments  adversely  on  this  case. 

The  defence  was  that  the  deft,  did  not.  intend.   Prof.  Smith  thinks 
the  case  is  probably  wrong.   As  a  matter  of  fact  the  occasion  was  not 
privileged.   Sending  to  Wood  would  hafs  been  privileged,  but  he  did  not 
send  it  to  ^ood.   See  L.R."  10  C.P.  lOS,'  also  60  Hun  219;  which  held  that 
the  intent  was  no  defence. 

In  34-  M.B.H.  462;  159  Mass.,  293  —  the  Globe  described  a  prisoner 
as  P.P.!  Hanson,  Real  Estate  &   Ins.- broker  of  So.  Boston.   In  fact  the 
prisoner  was  A. P. R.Hanson  and  H.P.Hanson  brought  suit.   The  court  stood 
1  to  3  for  the  deft.   ".'hich  is  the  proper  question?   r/ho  did  the  paper 
intend  to  speka  of  or,  who  would  the  public  think  the  paper  intended  to 
speak  of?   Prof.  Smith  thinks  the  latter  is  the  proper  question.   Sup- 
pose g  statem.ent  regarding  John  Smith  damages  five  J. Smiths?   Prof. 
Smith  thinks  that  each  has  an  action.   The  question  is  not  a  question  of 
intent  but  one  of  act.   Holmes  dissented  agreeing  with  Prof.  Smith. 
TQOGOOD  V.  SFYRING,.  p.  508,  Exchequer,  183^. 

Deft.,  made  libellous  remarks  baout  plff.  to  a  person  to  whom  it  was 
a  privileged  communication;  a  third  party  was  present,  and  heard  it. 
Question  was,  did  that  defeat  privilege.   H^LD,'  that  it  did  ncL  necessa- 


161. 
rily.   .Not  essential,  that  the  party  interested  should  bs  coisQiunioateci 
with  alone.   If  the  words  were  not  iT;aiicious,  simple  fact  that  there  has 
been  a  casual  bystander  does  not  alter  the  nature  of  the  coniiriunic.it ion. 

.7=iKing  the  statement  in  the  presence  of  a  th.ird  party  is  not  neces- 
sarily jlecisive.  'J'his  case  is  cited  perhaps  more  than  any  ether  in  re- 
gara  to  a  coniiriunication  lo  a  ihird  party. 

SUf/MARY  OF  DEFAMATICW. 

Cgfamation  in  any  language,  oral  or  written,  or  any  figure,  tending 
to  brirjg  the  person  of  whom  it  is  published  into  hatred,  redicule,  or 
discraie,  or  tc  injure  hirr  in  respect  of  his  vocation. 

Publication  is  the  n^akine  defalcation  known  tc  a  third  person. 

ifefaination  is  of  two  sorts;  libel  and  slander.   Slander  consists  of 
aiLuar  (a)  words  inputing  criire,  or  (b)   words  disparaging  a  person  in 
his  iraie,   business,  office  or  profession,  or  fc)  words  imputing  a  loath- 
some' disease,  cr  (i)   defan.atory  words  not  actionable  per  se,  but  causing 

special  danage. 

Libel  is  defamation  propogated  by  printing,  writing,  pictures,  or 
effigies.-  Slander  consists  of  spoken  defamation  only. 

Anything  which  is  actionable  per  se  .or  on  proof  of 

special  damage,  when  spoken,  is  actionable  per  se  when  pwritten. 

There  is  no  good  reason  for  the  distinction  between  spoken  deiaatlic 
and  written  deiamstion,  but  the  fact  is  that  printed  defama.tion  is  action 
able  per  se.   Ry  printed  defamation  libel  is  here  meant. 

Truth  is  always  a  defence  to  an  action  for  defamation,  unless  shut 
off  by  statute;  therefore  the  defence  of  privilege  presupposes  the  utter- 
ance of  a  defamatory  char  e,  which  was  untrue,  and  which  tended,  in  le- 
gal theory  or  in  fact,  tc  damage  plff.   L.R.  4  Q.B.  7". 

A  declaration  for  defamation  must  allege  Lhe  falsity  of  the  state- 
ment, but  plff.  need  not  prove  its  falsity,  as  the  law  will  presume  in- 
nocence of  the  party  charged  until  the  charge  is  proved,   Defts.  must 
prove  its  truth.   Practically  it  is  better  not  tc  set  up  the  defence 
of  truth  unless  you  have  an  overwhelming  confidence  in  your  ability  to 
prove  it.  for  if  it  fails,  the  jury  will  always  give  larger  damages. 

Privilege  rests  on  the  fact  that  the  interests  of  the  public  demand 
that  one  in  a  privileged  bposition  should  speak  what  he  believes  to  be 
true.   Inoases  of  absolute  privilege,  there  is  no  liability  for  defama- 
tion not  even  for  defamatory  statements  made  with  knowledge  of  their 
falsity,  and  from  mot.ives  of  ill  will.   The  Chief  Fxecutive  of  the  ra- 
tion, the  Governors  of  States,  riiembers  of  both  national  and  state  Legis- 
latures,- ere  privileged  absolutely  as  Lc  any  statements  made  by  Vnen: 
while  acting  in  their  official  capacity. 

Persons  connected  with  the  administration  of  justice,  judges,  jur- 
ors, parties,  counsel  and  witnesses,  are  privileged  absolutely  as  tc  rel- 
evant statements  made  in  the  course  of  judicial  procedings.   L.R.  7   H.L. 
755  and  756.   (  Oase  contains  arguments  applicable  to  the  question  as 
to  why  these  clauses  are  thus  privileged.) 


182. 

Privilege  is  either  absolute  or  conditional. 

In  conditional  privilege  there  are  two  questions.  1.  the  occasion; 
2.  conditions  other  than  the  occasion. 

A$  to  the  occasion .   If  the  communication  is  made  in  the  interest 
of  the'hearer  as  to  an  'employee,  it  is  conditionally  privileged;      i 
if  it  is  made  in  the  interest  of  the  speaker.   Private  interest  or  auty 
of  the, speaker,  bearer,  (^r  bboth  may  justify  making  a  statement  as  to 
another.   The  fact  that,  information  was  volunteered  will  not  take  it 
out:  of  privilege,  though  it  may  influence  the  jury  as  to  the  speaker's 
motive.   The  duty  may  be  weither  legal,  social  or  moral. 

On  principle  newspapers  have  no  special  privilege  to  publish  matter 
as  reports,  for  example,  on  the  ground  of  interest  to  the  public,,,..-^ They 
have  the  same  right  to  give  information  as  others  have  and  no  more. 

Communications  to  public  officials  as  to  other  persons,  for  example, 
subordinate  officers,  made  for  the  purpose  of  redressing  grievances,  are 
privileged,  if  addressed  to  the  officials  having  charge  of  such  matters. 
It  is  disputed  whether  it  is  privileged  when  addressed  by  mistake  to  the 
wrong  official.   70  L.T.  n.s.  S26. 

There  is  a  conflict  of  authority  as  to  whether  privilr.-c  applies 
to  specific  charges  against  a  candidate  for  public  office  other  than  fair 
comment  on  his  past  services.  23  Am.  Law  Fev.  ^-''c. 

As  to  conditions  other  then  the  occasion:  if  the  occasion  is  priv- 
ileged, privilege  will  be  a  defence.   1.  Unless  the  con:munication  ex- 
ceeds the  reasonable  necessities  of  the  occasion  either  in  matter  or  man- 
ner of  publication,  (as  communication  by  postal)  or,  2,  unless  plff. 
proves  that  deft,  did  not  honestly  believe  the  stateirent  to  be  true,  or 
3, •  (according  to  some  authorities,  denied  by  others)  unless  plff.  proves 
that  deft,  even  though  believing  his  statement  did  not  have  reasonable 
ground  for  his  belief.   56  Am.  Rep.  2S0  says,  "It  is  mistakes,  not  liej , 
that  are  protected  by  the  doctrine  of  conditional  privilege."   Also,  "^_i 
is  not  a  duty  on  any  man  to  circulate  lies."   Or  4,  unless  the  deft, 
acts  from  a  wrong  motive,-  as  he  will  not.  then  be  discharging  a  duty. 

If  the  occasion  is  otherwise  privileged,  for  example,  conditionally 
privileged  and  reasonable  necessities  in  matter  or  manner,  the  burden  of 
prqbf  is  on  the  plff.  to  show  that  the  deft,  spoke  without  honest  belief 
or' from  a  wrong  motive.   Ames'  Oases  on  T.  533  and  537.   23  Am.  Lavi 
Rev.  367,  note  3.   '^'.-ant  of  reasonable  belief  is  important  as  evidence  of  i 
the  lack  of  honest  belief. 

Prof.  Smith  thinks  it  is  sufficient  to  let  a  nan  off  for  a  reascnabi 
belief  without  extending  the  excuse  to  an  honest  belief  which  is  without 
foundation.   The  English  case  and  the  New  Hampshire  case  in  the  refer- 
ence just  above  are  directly  contra  on  the  point  of  whether  reasonatle 
ground  for  belief  must  exist  in  addition  to  actual  belief. 

Now  we  come  to  one  of  the  few  cases  in  the  Law  of  Torts  where  malice 
(or  wrong  motive,  as  Prof.  Smith  prefers  Ic  call  it)  is  essential. 

Actual  malice  is  not  confined  to  ill  will.   It  means  any  impioper 
motive.   Malice  means  a  wrongful  act  done  intnntionally  without  just 


16a. 

oauss  or  excuse. 

One  must  speak  only  frcni  a  dutyk  or  to  protect  the  interests  which 
save  rise  to  the  occasion  in  order  to  take  advantage  of  privilege.   If 
he  speaks  from  any  otherjniotive  than  duty,  6r  to  protect  the  interest 
which  gave  rise  to  the  opcasion,  he  speaks  'from  an  improper  motive,  that 
is,  from  if/hat  is  called ;actual  malice.    / 

If  the  plff.  makes' out,  any  one  of  th^se  points,  the  defence  of 
privilege  is  overthrown.   Malice  in  f actj' must  be  shown  by  evidence  other 
than  that,  deft,  was  mistaken.   Flff.  must,  prove  malice.   If  deft,  knew 
the  falsity  of  the  statement  it  would  be  almost  always  conclusive  proof 
of  malice.   The  manner  of  publication  and  the  language  used  may  some- 
times be  sufficient  to  prove  malice  in  fact.   Honest  belief  does  not  of 
course  sxclude  malice  in  fact.   See  Ames'  Cases  on  '''orts  535. 

.  PRIVILEGED  REPORTS. 

The  reports  of  certain  bodies  as  courts  of  Justice,  Legislatures, 
state  and  national,  are  conditionally  privileged.   There  is  a  discussion 
as  to  whether  the  reports  of  societies,  clubs,  city  governments,  and  oth- 
er quasi  public  meetings,  etc.,  are  privileged.   The  tendency  in  the  U. 

.  Is  to  treat  the  reports  of  any  of  these  quasi  public  meetings  as  priv- 
ileged.  In  "^^ngland  they  do  not  go  so  far. 

.Reports  to  be  privileged  need  net  be  verbatiu,  but  must  be  accurate 
and  not  be  distorted.  Conditional  privilege,  here  as  elsewhere,  may  be 
rebutte'^  b"  proof  of  actual  malice. 

FAIR  OOMMKNT. 

On  this  see  '!  F.&  F.  1107  and  939,   If  a  man  states  facts  which 
are  not  in  the  book  or  play,  it  is  not  fair  comment;  but  if  he  expresses 
merely  an  opinion,  it  is  a  question  for  the  jury  whether  the  comment  goes 
beyond  what  fair  minded  persons  might  be  reasonably  inclined  to  say. 
That  is,  whether  the  comment  is  so  strong  that  no  fair  minded,'  reasonable 
man  could  entertain  it.   69  L.T:'.n.s.  846  and  847  per  Lopes  L.J. 

Comment  on  undisputefi- facts  would  be  f?ir  although  deft,  arguea  to 
show  certain  concJusio^'.   But  if  the  paper  set  out  new  facts  and  new 
conclusions,  the  defence  of  fair  comment  would  net  be  sufficient. 
Ames'  Cases  on  T.  455,  lines  7  to  10. 

The  defence  of  privileged  co:munications  cannot  be  maintained  unless 
all  the  conditions  exist.   The  burden  of  proof  is  on  the  plff.  to  rebut 
privilege.   As  before  said  although  the  occasion  is  conditionally  priv- 
ileged, other  conditions  must  be  present  in  order  to  allow  deft,  to  take 
advantage  of  privilege.   (f/ust  not  exceed  reasonable  necessities  of  the 
occasion  in  matter  or  manner  of  publication;  must  be  honestly  believed, 
etc.)   Tt  is  sufficient  if  plff.  overthrows  any  one  of  the  essential  con 
ditlons. 

CHAPTSR  IV. 
Malicious  prosecution. 

Malicious  prosecution  is  a  civil  action  fcr  the  malicious  prosecu- 
tion of  a  criminal  charge.   The  law  has  made  it  hard  fo  maintain  such  an 
action  so  as  not  to  discourage  prosecution.   The  essential  elem^ents  for 


164. 
the  niainlenance  of  the  action  are  that: 
i.   There  )iust  have  been  a  prosecution  of  a  criminal  charj^e; 

I  he  prcfsecution  musthave  terniinated  before  the  present  action  is 

orouaht.^ 

3.  The  terifi'^nation  must  have  been  favorable  to  the  accused  except  in  ex 
parte  proceedi^nfis; 

4.  There  was ■ want,  of  probable  cause; 

5.  There  was  ^malice,  so  called;  and 

6.'   (According  to  some  authorities)  There  was  special  damage  unless  the 
charge  is  one  which,  if  made  outside  of  legal  proceedings  would  have  been 
a  slander  actionable  per  se. 

These  requisites  must  all  exist  to  inake  the  deft,  liivble. 

Section  1  (continued.) 
(b)  Want  of  Probable  Cause. 
FOSHAY  V.  FERGUROM.  p.  548.  N.Y.,  1846. 

Held,  that  proof  of  express  malice  is  not  enough  without  showing 
also  the  want  of  probable  cause.   Probable  cause  is  a  reasonable  ground 
of  suspicion,  supported  by  circumstances  sufficiently  strong  in  them- 
selves to  warrant  a  cautious  man  in  the  belief  that  the  person  accused 
is  guilty  of  the  offence.   It  does  not  turn  on  the  actual  guilt,  or  in- 
nocence of  the  accused,  but  on  the  belief  of  the  prv-^secutdr  concerning 
such  guilt  or  innocence. 

If  one  is  actuated  by  express  malice  in  the  presecution  of  a  crime, 
he  is  not  liable  if  he  had  probable  cause.   The  accuser  need  not  have 
actual  knowledge,  but  he  must  have  received  such  information  as  would 
cause  a  reasonable  man  to  act.   24  Atl.  Rep.  1042  says,  "Cautious  man" 
is  too  strong  a  word,  that  the  test  is  "Reasonable  man,"   The  burden 
is  on  the  plff.  to  show  want  of  probable  cause,  when  the  present  deft, 
instituted  the  criminal  prosecution.   He  need  not  show  the  deft.'  had, 
legal  evidence  of  his  own  knowledge;  it  is  sufficient  if  he  proceeds 
on  information  strong  enough  to  give  a  reasonable  degree  of  suspicion. 
In  order  to  maintain  malicious  prosecution,  it  is  not  enough  to  prove  ex- 
press malice  alone,  or  want  of  probable  cause  alone;  must  prove  both. 
A'ant  of  probable  cause  cannot  be  inferred  from  the  most  explicit  proof 
of  express  malice.   But  malice  may  be  inferred  from  want  of  probable 
cause. 

3L00N  V.  GERRY,  p.-  550,  Mass.,  1859. 

HFJLC,  that  conviction  by  lower  court,  though  reversed  in  upper 
court,  is  sufficient  proof  that  the  prosecution  was  instituted  with  prob- 
able cause,  unless  conviction  was  procured  by  the  frsud  of  person  insti- 
gating the  suit. 

The  court  held  the  conviction  in  a  lower  court  as  practically  con- 
clusive evidence  of  probable  cause,  though  reversed  in  upper  court. 
Prof.  Smith  thinks  this  wrong  on  principle.   See  Bigelow's  torts  63  to 
e5;   Stephen  on  malicius  prosecution  101,  102;  22  An.  L.R.  892.   The  law 
en  this  point  is  conflicting,- see  the  note  on  p.  551.   Prof.  Smith 


1S5. 
thinks  the  court  oiu^ht  to  tell  the  jury  what  probable  cause  is  in  law 
and  then  let  the  jury  find  whether  en  the  facts  it  existed.   See  L.R. 
4  H.L.  521.   But  the  weight  of  authority  is  with  this  case. 

On  principle  it  would  seem  that  the  former  decision  ought  not  to 
have  any  bearing  on  the  action,  except  to  show  that  the  present  piff.  was 
acquitted  in  the  former  action.   (This  is  an  essential  element  of  an 
action  for  malicious  prosecution.)   But  m,any  things  are  regarded  as 
prima  facia  proof  of  probable  cause,  although  they  ought  not  to  be. 
How  the  case  appears  to  another  when  presented  to  him  has  nothing  to  do 
with  how  the  case  appeared  to  the  deft,  when  he  instituted  the  proseou- 
tion,  but  the  law  holds  that  to  be  conclusive. 

RAVENGA  V.  I^ACKINTOSH.  p.  552,  King's  Bench,  1824, 

HELD,-  that  if  a  party  lays  all  the  facts  of  his  case  fairly  before 
counsel  and  acts  bona  fide  upon  the  opinion  given  by  that  counsel  (hew- 
ever  erroneous  that  opinion  may  be)  he  is  not  liable  for  an  action  for 
malicious  prosecution.   But  if  he  does  not,  act,  bona  fide  ion  the  opin- 
ion, and  does  not  believe  he  has  any  cause  of  action  whatever,  it  is  dif- 
ferent. 

If  deft,  intentionally  omits  facts  in  his  statement  to  counsel, 
counsel's  opinion  is  no  defence  to  an  action.   Deft,  is  still  liable. 
Suppose  he  unintentionally  omits  facts  and  thinks  he  has  laid  them  all 
before  counsel,  the  question  has  not  been  determined. 

32  l»i.K.R.  913,  accord. 

The  difficulty  with  the  defence  here  was  that  deft,  didn't  believe 
what  his  counsel  told  him. 

HADRICK  V.  H?SLOF  AND  RAINS,  p.  553,  Q.B..  1848. 

3ase  for  rralicious  prosecution.   It  appeared  that  deft,  heard  of 
what  plff.  had  done  frcn.  another  party,  then  stated  he  would  indict  plff; 
that  his  informant  expressed  an  opinion  that  there  was  no  ground  for  such 
indictment;  on  which  deft,  said  that  even  if  there  were  not,  it  would 
tie  up  plff's  mouth  for  a  while.   Jury  found  that,  deft,  did  not  believe 
he  had  reasonable  ground  for  indicting  and  that,  he  acte^  from  improper 
motive.   Verdict  for  plff.   HtlLC,^  that  question  of  deft.'s  belief  was 
rightly  left  to  the  jury    Ahere  there  is  not  belief,  there  certainly 
is  not  reasonable  and  probable  cause. 

Two  things  are  necessary  for  probable  cause.   U)  Such  facts  as 
wouldinduce  a  reasonable  man  to  act.  (2)   Deft,  himself  must  actually 
believe  that  the  accused  is  guilty.   He  must  actually  and  reasonably 
believe.   Glerk  S-  Lindsell  pp.  572  and  516. 

"v\'ant  of  probable  cause"  may  not  be  inferred  from  express  malice. 
This  is  recognissed  with  regret  in  L.R.  4  H.L.  591.   That  want  of  prob- 
able cause  is  a  question  for  the  judge,  is  an  anomaly,  but  it  is  law. 
Stephen  on  Malicious  Prosecution. 

SECTION  I  ^continued.) 

MITCH^,  V.  JENKINS,  p.  55S,  King's  Bench,  1833. 


I 


168. 

Case  for  malicious  arcesL.   It  appeared  that  plff.  was  indebted  to 
deft,  in  the  sum  of  45/t;  and  th^it  deft,  owed  plff.  16i.;  that  deft;  at  the 
advice  of  his  attorney,  arrested  plff.  for  whole  sum  instead  of  for  bal- 
ance.  There  was  no  evidenc^' of  malice,  but  .iudae  told  jury  that,  as 
plff.  ought  net  to  have  been./ arrested  for  more  thanthe  balance,  the  law 
implied  malice.   Verdict  for  plff.   Hule  nisi.   HELD,  that  malice  m 
fact  must  be  proved.   But/ it  may  be  inferred  sometimes  from  the  arrest 
itself,  and  that  is  always  a  question  for  the  jury.   New  trial. 

'■ant  of  probable  cause  was  clear  and  tjie  judge  said  that  malice  was 
to  be  implied,  as  the  plff.  ought  not  by  law  to  have  been  arrested  for 
more  than  the  balance.  ;  That  was  wrong.   The  judge  could  neither  non- 
suit the  plff.  and  say'there  was  no  malice,  nor  could  he  imply  malice, 
but  the  question  had  to   be  left  to  t,he  jury  to  find  whether  there  was 
malice.   The  law  do$  not  infer  malice  in  malicious  prosecution.   The 
requirement  of  ii.alice  is  an  actual  necessity  there.   ^'rom  want  of  prob- 
able cause,  the  jury  smay  infer  malice,  but  they  ere  net  bound  to  do  so. 
VANDFRBIL'''  v.-  MATHIr,  p.  553, ■  N.Y.,  1856. 

HELD,  that  want  of  probable  cause  and  malice  mufet  both  be  proved, 
'^ant  of  probable  cause  may  be  sufficient  under  some  circumstances,  to 
justify  jury  in  inferring  malice  in  fact.   Rut  not  always.   And  where 
it  does  not,  malice  must  be  expressly  proved. 

f»'alice  must  be  found  as  a  fact  by  jury.   S7  L.T.n.s.  108  L.R.  1894, 
2   Q.B.,  716.    '}eft.  when  he  began  prosecution  h-'";  ■-■^■Vn]   belief  of 

guilt  of  plff.,  but  no  reasonable  grounds  for  believing  that  plff.  was 
guilty.   HSLD,  that  want  of  probable  cause  was  not  evidence  of  malice, 
V  when  deft,  actually  believed  the  facts. 

Ordinarily  want  of  probabe  cause  is  evidence  of malice,  because  ordi- 
narily a  man  will  not  believe  the  charge  to  be  true. 

In  conditional  privilege  and  malicious  prosecution,  scalice  has  a 
meaning.   In  privileged  communications  it  means  improper  motive. 

In  malicJDUs  prosecution  malice  means  any  motive  ether  than  the  fur- 
therance of  justice.   Bishop  N'cn-Oon.  Law  sec.  232,  Clerk  ^  Lindsell  51S 

Here  m.otive  is  material  and  must  be  proved  as  a  fact.   In  nalic- 
ious  prosecution  there  is  no  legal  implication  of  malice.   i^ant  of 
probable  cause  is  not  evidence  of  Jialice  when  there  is  actual  belief 
of  truth  of  charge.   -     .  Law  Guar.  Rev.  141-144  contends  that,  malice 
ought  not  to  be  necessary  to  the  action. 

There  is  a  complete  immunity  from  action  for  defamation  for  charge 
made  in  the  course  of  judicial  proceedings,  but  the  party  accused  can  ■ 
maintain  malicious  prosecution,  but  it  is  far  more  difficult.   L.R.  11 
Appeal  Cases  252  (Bram.well. ) 

SftCTION  I  (continued.) 
(d)   Damage. 
BYNij  v.  VQCR^.  p.  562,  Com,  Fleas.  1813. 

Action  for  a  malicious' prosecution  in  indicting  the  plff.  for  an  as- 
sault and  battery.   The  only  evidence  of  plf .  being  that  the  bill  was 


1S7. 
preferred  and  not.  found,  the  Lord  Chief  Baron  non-suited  hiir.,   A  rule 
nisi  havinf^  been  obt.ained  and  cause  shown  against  it,  HSLO,  plff .  cannot 
recover  because  he  has  not  proved  he  sustained  any  damage.   If  this  ac- 
tion could  be  maintained,  every  bill  which  the  grand  jury  threw  out  would 
be  the  ground  of  an  action.   Plff.  was  neither  put  to  expense  nor  was 
his  good  fame  affected. 

If  prosecution  had  been  for  a  felony,  decision  would  be  otherwise; 
no  proof  of  special  dan-age  necessary  there.   Distinction  made,  though 
cioubtiul  if  it  exists,  is:  If  charge  complained  of  be  so  far  scurrilous 
that  an  action  of  slander  can  be  maintained  for  a  similar  verbal  state- 
m.ent,  without  proof  of  special  dam.age,  then  the  action  for  malicious  pros- 
ecution may  be  maintained  without,  special  damage.   Doubted  by  Oierk  &  [,. 
and  Oooley,   Open  question. 

Stephen  on  Malicious  Prosecution:  It  is  for  the  jury  to  find  first, 
V  what  the  facts  are,  and  whether  or  not  they  constitute  reasonable  cause; 
•question  of  whether  the  facts  constitute  prol  able  cause,  though  often 
held  to  be  for  the  court,  is  for  the  jury.   Smith  t.hinks  action  for  m.a- 
licious  prosecttion  ought  to  be  held  difficult  because  as  a  rule  men  who 
bring  such  actions  ought  to  have  been  convicted  on  the  criminal  charge, 
8nd  also  because  there  is  no  public  prosecutor  here. 

Malice  in  malicious  prosecution  means  abotu  the  same  thng  as  in  con 
ditional  privilege;  anything  but  the  rieht  motive, net  a  desire  to  promote 
justice.   Two  cases  where  motive  is  important;  1.  In  rebutting  the  de- 
fence of  conditional  privilege,  and,  S  in  maintaining  the  action  for  ma- 
licious prosecution. 

-'icriGi^  V. 

f/alioious  Institution  of  a  Civil  .Action  without  Arrest  or  Attachment. 
WnOB^^^   V.  NFLLINGBR.  p.  57?.  Iowa,  1S84. 
The  petition  alleges  that  defts.  brought  an  action  against  plff. 
and  his  wife,  charging  in  the  petition  that  they  two  conspired  and  con- 
federated together  to  defraud  defts.,  by  representing  to  defts.,  under 
the  assumed  name  of  Faker,  that  they  were  owners  of  certain  lands  which 
defts.  were  induced  to  purchase;  thai,  in  en  action  by  one  i'.'codward,  a 
deed,  purporting  to  be  executed  by  him  to  be  void,  for  the  reason  that 
it  was  forged  and  fraudulent,  and  that  plff.  herein  and  his  wife  well 
knew  the  con3ition  of  their  title.   It  is  further  alleged  that  defts. 
herein  served  out  a  writ  of  attachment  in  the  suit  brought  by  them, 
which  was  levied  upon  real  estate  owned  by  plff's  wife,  and  that  defts. 
for  a  time  prosecuted  their  action,  but  finally  dismissed  it  at  their  own 
costs.   Plff.  alleges  that  he  was  not  guilty  of  the  frauds  therein 
charged,  and  that  the  action  was  conmenced  and  prosecuted  by  defts.  ma- 
liciously and  without  probable  cause.   There  was  no  evidence  showing 
that  the  writ  of  attachment  was  levied  upon  any  property  owned  by  plff. 
HELD,  no  action  will  lie  for  the  institution  and  prosecution  of  a  civil 
action  with  malice  and  without  probable  cause,  where  there  has  been  no  ar 
rest  of  the  person  or  seizure  of  the  property  of  deft.,  and  no  special 
injury         sustained  which  would  not  necessarily  result  in  all 


168 
suits  prosecuted  to  recover  for  like  causes  of  action. 

In  England  t.he  successful  deft,  is  adequately  compensated  for  the 
damage  he  sustains  by  the  costs  allowed  h^rr.  by  the  statutes.   In  this 
country  that,  is  not  generally  true;  in  fac/t,  though  the  theory  is  that  he 
is.   fhe  ideal  way  would  bs  would  be  fo/  t.he  legislature  to  enact  that 
judges^be  allowed  to  tac  substant,ial  co^ts  where  t.he  suit  wasbrought 
out  of  iTialice  and  without  probable  causfe. 

SECTION  ft. 
Malicious  Abuse  of  Process. 
'        GRAINGER  v.  HILL,  p.  5S0,  Com.  Pleas,  1538. 
Plff.  was  arrested  on  a  case  and  under  tjie  duress  of  his  iiriprison- 
m.snt  was  conipelled  to  give  up  the  possession  of  the  ship's  register.   It 
was  contended  that  he  could  not  sue  in  respect  of  the  malicious  arrest, 
because  it  was  not  alleged  to  be  without  reasonable  and  probable  cause, 
nor  was  the  determination  of  the  suit  shown  under  which  the  arrest  took 
place.   HELD,  in  a  special  action  on  the  case  that  the  objection  could 
not  prevail,  as  the  action  was  not  for  the  malicious  arrest,  but  for 
abusing  the  process  of  the  law  to  effect  an  object  not  within  its  proper 
scope. 

A  legal  process,  not  itself  devoid  of  foundation,  aay  be  maliciously 
employed  for  some  collateral  object,  of  extortion  or  oppression,  and  in 
such  case,  the  injured  party  may  have  his  rignt  of  action,  although  the 
proceedings  of  which  he  complains  may  not  have  terminated  in  his  favcr. 

CHAP'ffiJfi  V. 
.Walicious  injury  to  the  plff.  by  influencing  the  conduct  of  a  third  per- 
son. 

SECTION  I. 
By  Inducing  or  Aiding  a  Third  Person  to  co):mit  a   Breach  of  a  Legal 

Duty  to  the  Plff. 
(a)   The  duty  cf  a  servant,  to  his  master. 
HART  V.  ALDRIDGEi.  p.  584,  Kind's  Bench,  1774. 
Trespass  on  the  case  for  enticing  away  several  of  plff's  servants 
who  worked  for  hin  as  journeymen  shoemakers,  bythe  piece,  a  gourneyman 
Contended  for  deft.,  that  they  were  not  plff's  "servants."   H5LD,  that 
whether  he  works  by  the  day  or  by  the  piece,  a  journeyman  attached  to  a 
particular  master  is  his  servant,  and  for  enticing  him  away  an  action 
lies. 

It  is  Jin  inference  that  deft,  knew  of  ccntract  between  plff.  and 
parties.   Great  stress  is  laid  here  on  fact  that  it.  was  a  contract  of 
service.   Idea  is  that  a  person  who  induces  another  to  break  contract  of 
services,  is  in  a  worse  position  than  one  who  induces  party  to  break  any 
other  sort  of  a  contract. 

Motive  was  lo  benefit  deft,  in  a  way  which  necessarily  injured  plff. 
The  act  cf  third  person  to  which  deft,  persuaded  them  was  wrongful. 

SECTION  I  (continued), 
(b)  The  Duty  of  a  Wife  to  her  Husband. 
TASK'ifi  V.  STANLII'Y.  p.  5R3,  Mass.,  1891. 
Actions  for  procuring  and  entic 


169. 

Actions  for  procuring  and  enticing  the  plff's  wife  to  live  separate- 
ly from  him.   Neither  declaration  nor  evidence  was  to  effect  that.  deft.. 
spoke  any  falsehood,  or  that  t.heir  conduct,  was  unlawful  for  any  other 
reason  than  its  tendency  to  produce  a  separation.   HELD,  that  in  order 
to   make  a  s.an  who  has  no  special  influence  or  authority  answerable  for 
mere  advice'  o.f  this  kind,  because  it  is  followed,  it  ought  to  appear 
that  the  advice  was  not  honestly  given,  that  it  did  not  represent  his 
real  opinions,  or  that  it  was  given  from  malevolent  motives. 

Precise  point  was  whether  deft,  should  be  allowed  to  testify  that 
his  advice  tc  the  wife  was  given  in  good  faith.   Decision  is  that  it 
should  be  allowed.   If  deft,  brings  about  results  which  are  in  them- 
selves tortious  and  actionable,  or  even  separation  by  means  which  are 
wrCng,  but  not  actionable  in  themselves,  there  is  an  action.   Holmes  is 
right  that  deft,  is  not  liable  if  he  gave  his  advice  in  good  faith  from 
prcJper  motives,  but  authorities  are  not  unanimous. 

SECTION  I  (continued.) 
(c)  The  Duty  of  a  Contractor. 
imh^Y   v.  GYP,,  p.  800,  Q.B.,  1853. 

Declaration  set  forth  an  agreement  betv.'een  plff.  and  Miss  Wagner  for 
performance  by  her  for  three  months  at  plff's  theatre;  and  then  stated 
that  deft,  maliciously  enticed  Miss  W.  to  abandon  her  contract  with  plff. 
whereby  plff.  was  darraged.   Demurrer,  on  ground  that  it  was  not  i   case  c 
of  master  and  servant.   HELD,-  that  the  principle  of  the  action  for  en- 
ticing away  servants  can  be  applied  to  the  case  where  deft,  maliciously 
procures  a  party,  who  is  under  a  contract  to  give  personal  services  to 
plff.  to  break  her  contract,'  whereby  plff.  is  injured.   (Coleridge, J. 
dissenting.) 

HELD,  that  the  action  would  lie  whether  the  service  had  been  actuall 
entered  upon  or  not,  provided  a  valid  contract  for  it  was  in  existence. 

Deft,  was  manager  of  a  rival  theatre.   Deft,  enticed  and  procured 
the  singer  to  break  her  contract  with  plff.   The  action  was  not  main- 
tainable on  ground  of  a  servant  under  Stat,  of  Laborers.   She  vits   not  a 
servant. 

To  maintain  an  action  for  malicious  injury  to  plff.  for  deft's  in- 
fluencing the  conduct  of  a  third  person,  these  two  questions  must  be  an- 
swered affirmatively:  1.  Was  there  a  legal  duty  owing  by  the  third  per- 
son to  plff.?   2.  V'.hether  the  legal  relation  of  cause  and  effect  exis- 
ted between  deft.'s  act.  and  plff's  damage.   f'odern  tendency  is  to  say 
that  Vicars  v.  A'illcccks  is  wrong,  and  Lynch  v.  Knight  is  right  (see  vol. 
2   p.  74).   Deft,  cannot  escape  on  the  ground  that  s  third  person  did  the 
act,  where  deft,  intended  that  such  act  should  follow,  and  where  such 
result  is  natural  and  probable.   ?/otive  certainly  was  to  damage  plff. 
and  probably  secure  the  third  person  for  deft's  theatre.   Here  is  a  case 
of  business  competition,  and  yet  deft,  was  held  liable. 

The  case  now  st,ands  for  proposition  that  if  one  malici  iusly  induce 
another  to  break  a  contract, ^  injured  contracting  party  can  recover  from 
the  interfering  party. 


170. 

Maliciously  means  that  the  deft,  intended  to  gain  a  benefit  for  hin,- 
self,  which  he  knew  could  only  be  obtained  at  the  expense  of  the  plff. 
Coleridge, J.  dissented  on  ground  that  Miss  Wagner  was  the  last  wrong-aoer 
but  the  case  conies  within  the  exception,,  therefore,  the  act  of  the  last 
wrong-doer  was  a  consequence  intended,-  or  which  ought  to  be  foreseen  by 
prior  wrongdoer;  prior  wrongdoer  is  still  responsible. 
BOA'EN  V.  HALL,-  p.  -613,  Court,  of  App.,  1B61. 

Action  against,  deft,  for  maliciously  inducing  one  of  the  parties  to 
a  contract,  to  break  his  contract.   The  contract  was  one  for  personal 
service.   It  was  a  contract  to  make  glazed  brick  for  plff.  for  5  years 
and  for  no  one  else.   HELD,-  an  action  lies  against  a  third  person  who 
maliciously  induces  another  to  break  his  contract  of  exclusive  personal 
service  with  an  eirsployer  which  thereby  would  naturally  cduse,  and  did  in 
fact  cause,  an  injury  tc  such  employer,  although  the  relation  of  niaster 
and  seiva.nt  may  not  strictly  exist  between  the  eaiplo,yer  and  the  employed. 

So  held  by  Lord  Selborne,  L.C.  and  Brett  L.J.  affiriring  majority 
in  Lumley  5:  Gye,  Lord  Coleridge,  C. -J. ,  dissentient. 

One  of  the  defts,  (Hall)  was  plff's  rival  and  another  (Flethcer) 
was  plff's  manager.   Hall  and  Fletcher  induced  one  Peirson  to  break  his 
contract  with  plff. 

Clinches  Lumley  v.  Gye.   Act  done  was  to  obtain  advantage  for  cne 
of  the  defts.  at  expense  of  plff.   Rejects  Vicars  v.  '/''illcocks.   If 
done  honestly  and  without  malicious  motive,  persuasion  to  break  contract 
is  not  actionab)  3, 

Sec.  21  Am,  Law  Pev.  509,   These  two  cases  are  very  important, 

&S5CTI0N  I  (continued.) 
(d)  The  Duty  of  an  Individual  not  to  coiiimit  a  Tort. 
mMm   V.  ZACHARY,  p.  S13,  King's  Bench,  1871. 

Action  sur  le  case.   The  plff.  declared  that  the  deft,  was  his 
shepherd,  and  that  two  of  his  sheep  did  estray,  one  of  which  being  found 
again,  the  deft,  affirmed  to  bs  the  plffs.,  whereupon  the  plff.  pc id  for 
the  feeding  of  it,  and  caused  it  to  be  shorn  and  marked  with  his  n^ark; 
and  yet  afterwards  the  deft.,  maliticse  machinana  to  disgrace  the  plff., 
and  knowing  the  sail  sheep  to  be  the  plff's,  false  and  fraudulently  affir 
mavit  tc  the  bailiff  of  the  manor  that  had  waifs  and  strays  belonging  to 
it,  that  this  sheep  was  an  estray;  whereupon  the  bailiff  seized  it  to  his 
damage  te^c.  HF'LD,  that  the  action  would  lie,  because  the  deft,  ty  his 
false  practice  hath  created  a  trouble,  disgrace,  and  damage  to  the  plff; 
and  though  the  plff.  have  cause  of  action  against  the  bailiff,  yet  this 
will  not.  take  off  his  action  against  the  deft,  in  respect  of  the  trouble 
and  charge  that  he  must  undergo  in  the  recovery  against  the  bailiff,  and 
Hales  said  that  if  one  slander  my  title,  whereby  I  am  wrongfully  dis- 
turbed in  my  possession,-  though  1  have  remedy  against  the  trespasser,  I 
shall  have  an  action-  against  him  that  caused  the  disturbance. 

Plff.  could  sue  bailiff  and  also  third  person  because  third  person 
induced  bailiff  by  use  of  a  falsehood  to  do  this  act;  natural  anc  proba- 
ble consequence  was  that  bailiff  would  do  the  act. 


171. 

Note  tp  E.J.Klous  V.  ti;.  Hennessey  and  others,  p.  520,  R.I.,  1881. 

Prof.  Smith  thinks  the  case  is  wrono.   Plffs.  were  not  judgment 
creditors,  but  had  a  right  to  attach.   Defts.  assisted  Kenney  to  secrete 
his  property  and  so  prevented  plffs.  from  attaching.   There  is  a  conflic 
of  authority  on  the  question.   Should  have  been  left  to  jury  to  say 
whether  it  wasprobable  that  plff.  would  have  attached.   One  has  a  right 
to  secure  hitnself  by  attachment  and  question  is  whether  it  was  probable 
•\that.  plff.  would  have  attached. 
\  SEOTION  II. 

^  Influencing  a  RThird  Person  who  owes  No  Legal  Duty  to  the  Plaintiff. 

(c)  By  Force  of  Threats. 
TARLKTON  V.  McOAALEY,  p.  678,  Nisi  Prius,  180d . 
Action  on  the  case.   Plff.  sent  a  vessel  to  trade  vdth  natives  on 
coast  of  Africa.   Deft,  maliciously  intending  to  hinder  natives  from 
trading,  fired  from  his  ship  into  a  canoe  of  natives  and  killed  one  of 
them,  whereby  they  were  deterred  from  trading  with  plff.   HELD,  that 
this  will  support  an  action.   If  it  had  been  an  accidental  thing,  no 
action  could  have  been  maintained,  but  it  is  proved  that  deft,  had  ex- 
pressed 6n   intention  not  to  permit  any  one  to  trade,  until  a  debt  due 
from  the  natives  to  himself  was  satisfied. 

This  is  a  case  of  force  and  so  is  a  clear  case.   The  means  used 
were  illegalper  se.   It  is  almost  absolutely  certain  that  the  natives 
would  enter  into  contract  relations  with  plff.   Deft,  intended  wrongful- 
ly that  the  natives  should  not  enter  into  such  relations.   It  is  only 
necessary  that  the  natives  were  about  to  trade  with  plff. 

Suppose  instead  of  pursuing  violent  methods,  deft,  merely  persusded 
thenatives  not  tc  trade,  in  good  faith.   No  action. 
ANONYI^GUS,  p.  378,  0cm.  Pleas,  1410. 

Trespass  brought  by  masterof  a  grammar  school  against  another  for 
setting  up  a  rival  school,  whereby  plff.  was  damaged.   HELD,  that  no 
action  lies.   It  is  dammum  absque  injuria .   Plff.  has  no  exclusi\e 
right. 

This  is  a  clear  case  of  free  competition.  Suppose  one  of  the  mas- 
ters had  kept  the  boys  away  from  other  with  a  gun,  then  of  course  action 
would  lie,  means  being  illegal. 

THE  MOGUL  STEAMSHIP  00.,  Ltd.,  v.  VOOR^GGR  &  CO..  p.  680,  Court 
of  A  pp.,  1858. 

Defts.,  a  number  of  ship  owners,  formed  a  combine  to  drive  conpe- 
titors  from  the  field.   Offered  very  low  rats  in  order  to  discourage 
other  ship  owners,  and  offered  a  special  rebate  tc  all  who  would  deal  ex- 
clusively with  them.   '^'hereby  plff.  was  damaged.   HEILD,  that  intention- 
al damage  like  this  is  actionable  if  done  without  just,  scause.   Put  ther 
was  just  cause  here.   Bona  fide  competition,  in  the  exercise  of  cne's 
own  trade,  is  allowable,  even  if  result  be  tc  damage  others.   .As  the 
act  done  was  lawful  and  means  were  lawful,  fact  of  conspiracy  is  immate- 
rial.- 


172.  ■ 

Not  one  person  but  a  conibination  of  persons;  offered  not  only  a  low  1 
rate  but  also  a  rebate  to  all^whc  would  not  deal  with  plff.;  also  a  pen-  1 
alty  was  to  be  imposed  upon  t/iose  who  broke  the  conditions  upon  which  the 
rebaye  was  paid.   Had  no  personal  ill  will  against  Plffs.   In  Lumley 
V.  Qve,  plff.  had  a  contractual  interest  violated;  here  plff.  coinplains 
tha^  other  people  were  induced  to  refrain  from  entering  into  contract  re- 
lations with  him.   If  defV.  employs  unlawful  means,  it  is  actionable,^ 
a^  in  Tarleton  v.  Mc3awley,',  ante.   Defts., 'excused  themselves  on  the 
gj^ound  of  fair  competition,   Bowen  holds  that  as  they  have  not.  done  any- 
thing unlawful,  but.  had  simply  exercised  lawful  competition,  they  are 
pot  liable.   Fact  of  combination  does  not  change  the  matter.    ere  fact 
of  combination  is  not  per  se  unlawful.   May  be  unlawful  under  certain 
■circumstances.   Case  is  the  settled  law  of  England,  and  the  most  impcr- 
;  tant  case.   Practically  followed  in  ^8  Atl.  Rep,  (R.l.)  1.  Principle 
j   applies  simply  to  preventing  persons  from  making  contracts. 
■ALK  '■  v.  3R0NIN,- p.  384,  t^ass.,  1S71. 

Tort  for  wilfully  persuading  employes  of  plff,  and  others  who  were 
about  to  enter  employment,  of  plff.,  to  abandon  the  employment,,  whereby 
plff.  suffered  damage.   H5LD?  that,  no  one  has  a  right  to  be  protected 
from  competition;  but  he  has  a  right  to  be  free  from  malicious  and  wantor 
interference,  disturbance  or  annoyance.   If  deft's  act  in  causing  damage 
to  plff.  was  wanton  and  malicious,  without  the  justification  of  competi- 
tion or  service  of  any  interest  or  lawful  purpose,  Plff.  can  recover. 

The  case  came  up  on  a  demurrer  to  the  declaration. 

Does  not.  allege  that,  there  were  any  existing  contracts  but  that  per- 
sons were  induced  to  refrain  from  entering  into  contracts.   Plff.  alleg- 
es that  deft's  acts  were  intentionally  wilful  and  without,  justifiable 
cause.   JHere  the  defts.  had  not  the  excuse  of  business  competition. 
Court  expressly  avoids  asaying  what  would  be  justifiable  cause. 

Suppose  A  in  good  faith  advises  B  to  break  contract,  with  C,  has  6 
an  action  against  A?   Pollock  480  -  4S1,  says  no.   Holmes,  S  Harv,  L.^. 
V? ,   seems  to  t.hink  difierently.   Prof.  Smith  thinks  former  is  right. 

Persuasion,  not.  amounting  to  coercion  and  not  having  the  element  of 
conspira:y  to  induce  person  not  to  enter  into  contracts  with  another  is 
not  actionable. 

21  Am.  Law  Rev.  525  -  529. 

TEyPERTON  v.  RUSS'^XL,  p.  537.  Court  of  App.,  1893. 

Plff.,  a  mason  and  bull  ler,- sued  defts.,  officers  of  trade  unions, 
for  unlawfully  and  maliciously  procuring  certain  persons  to  break  con- 
tracts with  plff.  and  other  persons  not  to  enter  into  contract  with  plff. 
whereby  plff.  was  damaged.   H^;LD,  that  as  between  themselves  members  of 
trades  unions  have  a  perfect  right  to  work  for  whom  they  will,  on  what 
ternis  they  will.   But  here  they  went  beyond  that  and  brought  influences 
to  bear  on  outsiders  to  prevent  their  dealing  with  plff.,  in  ordei  to  in- 
jure plff.   This  was  unjustifiable.   Inducing  men  to  break  contracts 
with  plff.,  and  inducin.i^,  men  not  to  enter  into  contracts  with  him,  are 
not  to  be  distinguishes .    ither  is  actiohable,-  if  done  maliciobsly. 


173. 

fi"aGl  inai,  insre  was  a  soiiioinaiicn  is  ir.atsriai.   A  coir.binaLion  of  two  or 
nfjore  persons  to  induce  ot.hers  not  to  deal  with  a  particular  individual 
\;r  enter  into  contracts  vdth  him,  if  done  with  intention  to  injure  hirr-, 
fs  an  actionable  wrong,  if»dan,aj^8  results  to  hirr,  therefrorr,, 

rempsrton  v.  'lussell,  Luniley  v.  3.ye,  Bowen  v.  Hall,  and  \l^.oe,u.l   Stean;- 
sh'?.p  Co.  V.  McGregor  are  the  four  most  iniportant  cases  on  the  subject. in 
'^Jn^^and. 

•  Defts.'  were  not  competitors  in  business  with  Temperton. Labor  Union 
had  trouble  first  with  brother  of  plff.   Ulterior  motive  was  to  coerce 
sonis  \pne  else.   ?/ight,  be  said  that  defts.  wer3  business  antagonists 
with  Vyers  &  Temperton  in  buying  and  selling  labor.   Court  lays  great 
stress\  on  the  corcomation.   Apparently  decides  that,  a  combination  to  in- 
duce parsons  to  refrain  from  entering  into  contracts  with  another  is  ac- 
tionable. 

Two  points  here:  1,  same  as  in  Lumley  v.  Gye.^  ether,  conspiracy  to 
prevent,  persons  entering  intp  contracts  with  plif.  '-hat.  element  is  there 
here  that  was  not.  present  in  l/jogul  Steamship  case?   Difference  in  the 
means  used,  here  there  were  threats.   8  Harv.  L.'R.  78. 

Frof .  Smith  regards  it  as  an  open  question  whether  an  act  not.  ac- 
lionabli,  if  done  by  one,  is  actionable  if  done  by  a  combination. 

The  fact,  that  several  combined  may  make  then,  liable  criminally  where 
one  alone  would  not  be.   The  combination  alone  nakes  t,hem  liable.   Mo 
civil  suit  is  maintainable  for  a  bare  combination.   The  quest.ion  is 
whether  there  may  be  a  civil  action  for  conspiring  to  do  and  doing  an 
act  which  if  dene  by  one  person  alone,  would  not  be  actionable  civilly. 
Am.es  S17,  705  -  705  and  692.   The  general  drift  of  ths  text,  books  is 
that  an  act  when  done  by  one  person  alone  is  not  actionable  it  is  not 
when  done  by  several.   Bishop  Non-Con.  Law  855-36?. 

"'.'hy  alleged  conspiracy  in  a  civil  action?   Becauiit  i,  ii.  iviii  ei - 
nance  the  damages,  the  conspiracy  having  aggravated  the  wrong.   2.  It 
tends  to  facilitate  the  proof  of  the  existence  of  malice.   Pollock  261. 
3.  Conspiracy  is  relied  on  to  get  the  benefit  of  a  rule  of  evidence. 
The  rule  is,-  that  ii  a  conspiracy  is  established,  then  each  conspirator', 
testimony  is  evidence  against  sU. 

CHAPTER  VTI. 
Malicious  Use  of  One's  Property  in  order  to  injure  the  Plaintiff. 
CH!i:SLEY  v.  KIND,  c.  '7  ,   ine,  1882. 

Deft,  dug  a  well  on  his  own  land  which  had  the  effect,  of  cutting,  on 
the  sources  of  supply  for  spring  on  plff's  land,  whereby  the  spring  be- 
came dry.   In  an  act.iof.  for  danages,  the  judge  instructed  the  jury  that 
deft,  was  liable  if  the  well  was  dug  solely  for  the  purpose  of  injui ins 
the  plff.   Plff..  had  a  verdict.   H^LD,  that  while  deft's  act  woulc  not 
be  actionable  if  done  in  good  faith  for  his  own  convenience,-  he  isliable 
if  it  was  done  solely  for  the  purpose  of injuring  another.   But  judgment 
must  be  reversed  as  the  verdict  was  against  the  evidence. 

This  case  holds  that  there  are  instances  where  acts  ray  be  so  out- 
rageous that  ar  action  may  be  allowed.    t  least  four  questions  trise: 


176. 
1.   iNature  of  plif's  ri^ht  or  interest;  is  that  interest  one  which  the 
law  will  take  notice  of  and  protect?   v^eight  of  authority  is  that  plff's 
interest  in  having  other  persons  enter  into  contract  relations  with  him 
is  an  interest  which  under  certain  circuir;stances  the  law  would  protect. 
?.   Has  d^ft.  used  means  which  are  trrtious? 
;-\   rl2s  p'lff.  suffered  damage  in  the  lejial  sense? 
i.       y"hei,Tier  relat.ion  of  legal  cause  subsists  between  atii'o  acL.  am 
plff's  damage. 

Most  important  point,  is,  what  ir.eans  were  used?   Holmes  in  S  Harv.  L 
-,.   '.;esns  per  se  unlawful  or  means  not  per  se  unlawful,  as  advice  or 
persuasion. 

The  subject,  has  three  difficulties.   i.  'Shat  is  a  wrong  motive, 
and/ what  are  right  niot.ives?    .   'ill  deft's  wrong  motive  make  something 
unlawful  or  actionable  which  would  not  otherwise  have  been  actionable? 
3.;   If  there  is  a  combination,  is  s  conibination  enough  to  give  right  of 
adt.ion? 

As  to  first  point  -  Often  sai:i  that  a  lawful  act.  oearM,  be  unlawful 
•v.ei-eiy   because  it  is  done  from  a  wrong  motive.   Statement  is  right,-  but 
is  simply  begging  the  question.   Question  iswhether  the  motive  may  make 
the  differsnce  between  lawfulness  and  unlawfulness.   Act  done  by  man  in 
the  use  of  his  own  land  which  would  be  unlawful  if  done  from  a  right  mo- 
tive, would  not  belawful  because  done  from  a  wrong  motive  according  to 
weight  of  authority.   As  to  acts  done  to  influence  conduct  of  thrid 
persons:  -  Tendency:  no;v  to  hold  that  wrong  motives  may  make  something 
actionable  which  would  not  otherwise  be  actionable.   Weight  of  authority- 
is  also  that  if  act  done  by  one  man  would  not  be  actionable,  a  combina- 
tion to  do  iL  will  not  be.   S  Harv.  L.R.  note  1.   A  combination  alont 
if  not  :     iclicwed  by  damage,  is  not  BcAAor.-r.bAp.   ?.t  civil  law. 


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